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DHS Proposes Ending Deference to Prior Approvals for H-1B Extensions
The Department of Homeland Security published a proposed rule on October 14 to remove the regulation requiring USCIS to give deference to prior approvals when adjudicating H-1B, L-1 and other work-visa extensions. Public comments are open until November 13; it is not yet final.
Why it matters
The Department of Homeland Security (DHS) published a proposed rule in the Federal Register on October 14 that would remove 8 CFR 214.1(c)(5), the provision directing US Citizenship and Immigration Services (USCIS) officers to give deference to a prior approval when adjudicating extension petitions with the same facts. Under the proposal, H-1B, L-1 and other covered work-visa extensions would be reviewed from scratch even if the employer, job and working conditions are unchanged. DHS estimates about 208,000 extension applications a year would be affected, roughly three-quarters of them H-1B.
Full report
The proposal was posted for public inspection at the Federal Register on October 13 and formally published October 14. It is open for public comment until November 13, 2026, and the current rule remains in effect for now. DHS argues the deference policy lets officers lean too heavily on earlier decisions, allowing erroneous approvals to stand and fraud to go undetected. The department cited USCIS site-visit data showing a combined noncompliance-and-fraud rate of 22.39 percent among inspected H-1B extension cases in fiscal 2022–2025, compared with 16.77 percent in fiscal 2018–2020, when a no-deference policy was in place.
The deference practice dates to a 2004 USCIS policy, was rescinded during Donald Trump's first term in 2017, restored by the Biden administration in 2021, and codified into federal regulation in December 2024. The current proposal would revive the first-term approach. Immigration lawyers warn it could bring back a surge of requests for evidence and longer processing times.
DHS also finalized a separate rule, effective October 14, ending automatic extensions of certain Employment Authorization Documents, confirming an interim measure from October 2025. The deference change, by contrast, remains a proposal pending the comment period.
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