If your company sponsors employees on work visas, a proposal published this month is worth understanding. It would change something most employers have come to rely on without thinking much about it.

On October 14, 2026, the Department of Homeland Security proposed removing the rule that directs USCIS officers to defer to their own prior approvals when reviewing extension petitions.

The proposal is open for public comment through November 13, 2026, and nothing has changed yet. Here is what it would mean and what you can do.

What Deference Means Today

When an employer files an extension for an employee already approved in a given category, USCIS officers are currently instructed to give weight to that earlier approval. If the employer, the employee, and the underlying facts have not changed, the officer generally does not revisit questions already settled the first time.

The reasoning is practical. An agency that approved a position as a specialty occupation two years ago, with no change in the role or the company, has already answered that question.

In practice, this is why extensions tend to move faster than initial petitions and draw fewer requests for evidence.

What the Proposal Would Change

The rule would remove that instruction from the regulations.

Officers could still consider a prior approval where relevant. But they would no longer begin from a position of deference, and they would be free to review every eligibility requirement fresh.

DHS acknowledges in the proposal that this would increase requests for evidence on extension petitions, since officers would be examining eligibility more thoroughly rather than relying on what came before.

Who Would Be Affected

Although much of the coverage has focused on H-1B, the proposal is broader than that. It would apply to all benefit requests filed on Form I-129, which includes:

  • H-1B specialty occupation workers
  • L-1 intracompany transferees
  • O-1 individuals of extraordinary ability
  • TN professionals
  • H-2A and H-2B workers
  • E, P, R, and other I-129 classifications

If your company files extensions in any of these categories, this reaches you.

Some Helpful Context

This policy has moved back and forth for two decades. USCIS first adopted deference in 2004, rescinded it in 2017, reinstated it in 2021, and formally wrote it into the regulations in December 2024 through the H-1B modernization rule.

That history is worth knowing for two reasons. It means the current proposal is not unprecedented, and employers who sponsored workers between 2017 and 2021 have navigated this environment before. It also means the policy has proven responsive to administrative priorities, which cuts in both directions over time.

What This Would Mean in Practice

Longer timelines. More requests for evidence means more cases taking additional months, which affects start dates, project staffing, and the renewal planning employees depend on.

More documentation at filing. The practical response is to file extensions as though they were initial petitions, with a complete evidentiary record rather than a reference to the prior approval.

More cost. Responding to an RFE takes attorney time and employer time, and that is before accounting for the disruption of a delayed decision.

More uncertainty for employees. An employee whose extension was previously routine may now face a longer wait with a less predictable outcome, which is genuinely difficult when families are planning around it.

What You Can Do Right Now

Submit a comment by November 13. This is the most useful action available, and it matters more than it might seem. Agencies are required to consider substantive comments, and several immigration rules this year have been narrowed or blocked because a court found that an agency had not done so adequately.

Effective comments are specific. The strongest ones describe concrete operational impact: the role that would go unfilled, the project timeline that would slip, the cost of preparing extensions as full petitions. Employer experience carries real weight in these records and is comparatively rare.

Notably, DHS acknowledges in the proposal that employers and workers may assert reliance interests in the continuation of the deference policy. That is an invitation to describe exactly how your organization has relied on it.

Review your extension pipeline. Look at which extensions are coming up in the next twelve months and consider whether those files would stand on their own without reference to the prior approval.

Build in extra time. If the rule is finalized, extensions filed close to an expiration date carry more risk than they used to. Filing earlier is the simplest protection.

Keep your documentation current. Job descriptions, organizational charts, wage information, and corporate structure records are easier to maintain than to reconstruct under an RFE deadline.

Where Things Stand

This is a proposal, not a final rule. The current deference policy remains in effect, and extensions filed today are adjudicated under the existing framework.

What happens next depends partly on what DHS hears during the comment period. That is a genuine opportunity, and it closes on November 13.

We Are Here to Help

At Garvish Immigration Law Group, we work with employers managing work visa extensions every day. If you would like help reviewing your upcoming filings, strengthening your documentation, or preparing a comment on the proposed rule, we would be glad to assist.

Reach out to us today.