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Here’s the deal: if your company sponsors workers on H-1B, L-1, or O-1 visas, a new federal proposal could change how USCIS looks at your next extension. On October 14, 2026, the Department of Homeland Security dropped a proposed rule that would end USCIS’s long-standing habit of deferring to its own prior approvals when reviewing extension petitions on Form I-129. The comment period closes November 13, 2026 — mark that date. This hits employers, HR teams, and foreign national employees across every industry that depends on H-1B specialty occupation workers, L-1 intercompany transferees, O-1 extraordinary ability workers, and similar categories. Below, our team breaks down what the proposal actually says, who it affects, and what to do about it right now.
Background: What This Means
(cite index=”1-2,1-3,1-4,1-5″>On October 14, 2026, the U.S. Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), published a proposed rule (91 FR 65119; DHS Docket No. USCIS-2026-0529) that would remove 8 CFR 214.1(c)(5). Here’s why that regulation matters: (cite index=”1-6″>it currently requires USCIS to defer to its prior eligibility determination when adjudicating a Form I-129 petition involving the same parties and the same underlying facts — unless there’s a material error, a material change, or new material information that hurts eligibility.
This policy has flip-flopped more than once over the past two decades. (cite index=”6-11,6-12″>USCIS adopted it in an April 2004 memo, rescinded it in October 2017, brought it back in the Policy Manual in April 2021, and finally wrote it into the regulations in the December 2024 H-1B modernization rule (89 FR 103054). Now this new proposal wants to undo that 2024 codification. Sound familiar? It should — we’ve seen this pendulum swing before.
If finalized, the change would not add new eligibility requirements. Instead, if the proposal becomes final, USCIS officers could independently reevaluate an extension petition instead of starting with the previous approval. Officers would still be allowed to consider a prior approval. They simply would not be required to defer to it. The employer would remain responsible for establishing eligibility through the evidence submitted with each petition. DHS has proposed ending USCIS’s deference to prior approvals for a long list of nonimmigrant worker extensions, from H-1B and L-1 to O-1 and TN. If the rule is finalized, an officer reviewing your next extension would evaluate it from scratch instead of giving your last approval any special weight.
It is important to understand that nothing has changed yet. This is a proposed rule—not a final rule. The existing deference requirement remains in effect while DHS completes the rulemaking process. After reviewing comments, DHS may issue a final rule, revise the proposal or withdraw it. There is currently no effective date for ending deference because no final rule has been published.
Separately, a related rule is also moving through the federal process. A proposed rule now under review at the Office of Management and Budget would seek to amend the U.S. Citizenship and Immigration Services premium processing timeframes, which are currently 15, 30, or 45 business days, depending on the immigration benefit sought. Though the contents of the proposal remain confidential for now, it could seek to lengthen existing premium timeframes. As of October 29, 2026, current USCIS premium processing rules remain unchanged, and the text of this proposal is not yet public.
How This Affects Employers and Foreign National Workers
Companies that sponsor employees under H-1B, L-1A, L-1B, or O-1 classifications, and the employees themselves, could see more scrutiny and longer waits at extension time. DHS proposes ending deference to prior USCIS approvals, potentially increasing RFEs and delays for H-1B, L-1 and O-1 extensions in 2027. The change would apply to every petition filed on Form I-129, which covers H-1B, L-1, O-1, TN, E and other nonimmigrant worker classifications.
Timing could become a real concern for workers whose status is expiring. DHS acknowledges in the proposal that a beneficiary of a timely filed extension may remain in an authorized period of stay and may be eligible to keep working while it is pending, citing 8 CFR 274a.12(b)(20). That rule generally allows up to 240 days after the authorized stay ends, so a petition that stays pending longer leaves less room. For employees nearing the end of a six-year H-1B period or waiting on a green card process, the stakes are higher. The proposal makes no exception for workers with an approved I-140 or for extensions beyond the six-year limit. A green card freeze doesn’t change that.
HR departments and in-house counsel that manage multiple visa renewals each year may also feel an operational effect. Combined with the pending H-1B reform rule and the proposed end of the 60-day grace period, longer extension timelines could leave employees with fewer options if an extension is ultimately denied. This makes careful case preparation, not reliance on a prior approval, the safer strategy going forward. Employers planning new hires or transfers on H-1B visas may want to review the specialty occupation requirements with the help of our H-1B visa page, and companies using intra-company transfers can review requirements for L-1A managers and executives or L-1B specialized knowledge employees as part of this planning.
What You Should Do Now
While the rule is still in the proposal stage, there are concrete steps employers and employees can take today:
- Organize your case file. Draft initial petitions with the full life of the case in mind, and retain prior petitions, supporting evidence, RFE responses and approval notices for use in later filings.
- Keep financial and employment records current. Keep your W-2s, pay stubs and tax returns together. If USCIS asks for proof, they’re the records you’ll want at hand.
- Track key dates separately. Separate the I-94 expiration, petition validity, employment authorization and business start date. Do not treat them as interchangeable.
- Consider submitting a public comment. Employers with significant extension volume can submit comments by November 13, 2026, ideally with concrete data on how longer timelines would affect operations. Emailed or mailed comments are not accepted; submissions must go through Regulations.gov under Docket No. USCIS-2026-0529.
- File extensions early. Given uncertainty about future processing times under both the deference proposal and the premium processing proposal, filing as early as the regulations allow can help preserve work authorization and reduce gaps.
How TEZ Law Firm Can Help
TEZ Law Firm assists employers and foreign national employees with H-1B, L-1, O-1, and other employment-based nonimmigrant and immigrant visa petitions, including extensions that may be affected by this proposed rule. The firm can help gather and organize supporting documentation, prepare extension filings designed to stand on their own evidentiary merit, and track filing deadlines as the regulatory landscape changes. For broader employment-based options, including EB-1, EB-2, and EB-3 green card categories, visit our employment-based visa page.
Frequently Asked Questions
Is USCIS already denying extensions based on this proposal?
No. Nothing has changed yet. The current rule stays in force until a final rule is published and takes effect. Employers and employees should continue to follow the existing deference standard under 8 CFR 214.1(c)(5) for now.
When is the deadline to comment on the proposed rule?
Comments are due November 13, 2026, providing a 30-day public comment period for interested parties to submit feedback on the proposed rule. Comments must reference DHS Docket No. USCIS-2026-0529 and be filed through Regulations.gov.
Does the proposal affect L-1 and O-1 visas, or only H-1B?
It covers more than H-1B. DHS has proposed ending USCIS’s deference to prior approvals for a long list of nonimmigrant worker extensions, from H-1B and L-1 to O-1 and TN, since all of these are filed on Form I-129.
What is happening with premium processing timeframes?
A separate proposal is pending. On October 13, 2026, DHS sent a proposed rule titled \”Amending the Premium Processing Timeframe\” (RIN 1615-AD25) to the White House for regulatory review. The specific changes are not yet public, and current 15-, 30-, and 45-business-day windows still apply as of this writing.
Will a worker lose status while an extension is still pending if it takes longer to process?
Current rules provide some protection. A beneficiary of a timely filed extension may remain in an authorized period of stay and may be eligible to keep working while it is pending, citing 8 CFR 274a.12(b)(20). That rule generally allows up to 240 days after the authorized stay ends, so a petition that stays pending longer leaves less room. Filing extensions as early as possible can help reduce this risk.
Immigration rules affecting H-1B, L-1, and O-1 extensions are in a period of active change, and the details of both the deference proposal and the premium processing proposal may shift before they take final form. If your company or your own visa status could be affected by these changes, TEZ Law Firm can review your situation and discuss options for upcoming filings. You can schedule a consultation or visit our immigration law page to learn more about the firm’s services, which are available nationwide from offices in West Covina, City of Industry, Newport Beach, and an immigration-only office in Flushing, New York. JJ Zhang (California Bar #326666) serves as managing attorney at TEZ Law Firm.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Laws and agency practices change; contact TEZ Law Firm (West Covina, California) at 626-888-6856 or [email protected] about your situation. Prior results do not guarantee a similar outcome.