US proposes to stop trusting past approvals when H-1B and other work visas are extended: comments close on 13 November

US Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security (DHS), has proposed removing a rule that makes its officers defer to an earlier approval when an employer asks to extend a worker’s visa status. The proposed rule, “Removing Deference to Prior USCIS Determinations of Eligibility” (91 FR 65119), was published in the Federal Register on 14 October 2026. It is a proposal, not a rule in force. Public comments close on 13 November 2026.

What deference means today

The current regulation, 8 CFR 214.1(c)(5), tells USCIS to give deference to a prior decision when it handles a Form I-129 request that involves the same parties and the same underlying facts. In practice this mostly applies when an employer asks to extend a worker’s petition or stay in the same classification. Officers can depart from the earlier approval only if there was a material error, a material change, or new material information.

Form I-129 extensions cover H-1B, H-1B1, L-1, O-1, E-3, TN and several other work categories. For Indian graduates who move from F-1 study to an H-1B job, this is the form an employer files to extend their stay.

What the proposal would change

• The deference regulation would be deleted. Officers would review the facts and evidence in every extension case afresh.
• The employer would carry the full burden of showing the worker is still eligible, even if nothing has changed since the last approval.
• DHS says the change “may increase agency resource demands associated with adjudicative actions such as RFEs”, meaning more requests for evidence are likely.

The policy has swung back and forth before. USCIS first issued deference guidance in April 2004, withdrew it in October 2017, restored it in April 2021, and wrote it into the regulations in a rule published in December 2024. DHS argues that deference shifted the burden onto its officers and weakened checks on fraud.

Key dates

• 14 October 2026: proposed rule published, DHS Docket No. USCIS-2026-0529.
• 13 November 2026, midnight US Eastern time (10:30 am IST on 14 November): comments close on regulations.gov.
• Final rule: not announced yet (as of 19 October 2026).

What to do now

1. If you are planning an MS in the US for 2027 with an H-1B in mind, budget for extensions that take longer and need fuller paperwork than before.
2. If you are already on an H-1B, keep a complete file now: pay slips, your job description, the employer’s project and client letters, and your degree documents. Each extension may ask for them again.
3. Anyone can comment by searching USCIS-2026-0529 on regulations.gov. Comments must be in English, should name the part of the rule they address, and are published with any personal details you include.

Further reading: H-1B visa fee 2026: who pays the $100,000 and what it means for Indian students, and our story on the proposed OPT fees.

CareerBox News Desk, reporting on the US Department of Homeland Security (US Citizenship and Immigration Services) proposed rule “Removing Deference to Prior USCIS Determinations of Eligibility”, 91 FR 65119, published 14 October 2026. Official portal: federalregister.gov/documents/2026/10/14/2026-20941/removing-deference-to-prior-uscis-determinations-of-eligibility. Dates and eligibility change; confirm them on the official portal before you act.