DHS Proposes Ending Deference to Prior Approvals: What H-1B, L-1 and O-1 Extensions Could Look Like in 2027

On October 14, 2026, the Department of Homeland Security (DHS) published a proposed rule that would end U.S. Citizenship and Immigration Services’ (USCIS) practice of deferring to its own prior approvals when it reviews extension petitions. 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. Public comments are due by November 13, 2026.

For employers, deference is what makes a “routine” extension routine. When the employer, the employee and the job are unchanged, USCIS today generally approves the extension unless it finds a material error, a material change or new adverse information. Without deference, every extension would be reviewed as if it were being decided for the first time. Should this policy go into effect, the chance of receiving a request for evidence will go up when submitting extension petitions.

This is a proposal, not a final rule. Deference remains in effect today, and nothing in your current extension process needs to change because of this announcement. DHS must review public comments before it can issue a final rule, and the final version could differ from the proposal. Employers should, however, begin planning for the possibility that extensions will take longer and require more documentation in 2027.

What the Proposed Rule Would Do

• Removes the deference regulation. DHS would delete the provision, added to the regulations in December 2024, that instructs officers to defer to a prior approval involving the same parties and the same facts.
• Applies to all Form I-129 filings. The change is not limited to H-1B. It would reach extensions for L-1, O-1, TN and E workers, and any other classification filed on Form I-129.
• Shifts the starting point, not the standard. Officers could still consider a prior approval. They would simply no longer begin from a presumption that the earlier decision was correct. Eligibility requirements themselves would not change.
• Rejects a middle ground. DHS considered making deference discretionary, so that officers “may” defer rather than must. It declined, citing the confusion that approach could create.
• Expects more evidence requests. DHS projects about 6,044 additional Requests for Evidence (RFEs) each year. Its own data shows that petitions receiving an RFE take an average of 64 more calendar days to decide.
• Does not predict more denials. DHS reports that when deference was previously removed, it found no corresponding change in denial rates. The expected impact is on time, documentation and certainty, rather than outcomes.

What Employers Need to Know

• Timelines need more cushion. An RFE adds roughly two months on average. For employees whose status is close to expiring, that can affect travel, project staffing and the timing of related filings for dependents.
• Employees can generally keep working, but with less certainty. When an extension with the same employer is filed on time, the employee may generally continue working for up to 240 days past the expiration of their status while it is pending. That protection still applies, but a longer adjudication leaves more time in which travel and planning are constrained.
• Documentation gaps from earlier filings become visible. If job duties, worksite, reporting lines or compensation have drifted since the original approval, the extension may be where USCIS asks about it.
• L-1 and third-party placements deserve attention. DHS cites higher rates of noncompliance or fraud found during site visits for H-1B and L-1A extensions while deference was in effect. Employers should expect those classifications, and arrangements where employees work at client sites, to draw particular review.
• Budgets should reflect higher RFE rates. RFEs require additional funds to respond. Employers should budget accordingly.

Suggested Employer Actions Now

1. File as early as permitted. Extensions can generally be filed up to six months before the start date requested. Earlier filing creates room to absorb an RFE.
2. Reconcile the file with reality. Compare each prior approval with the employee’s current duties, location, supervisor and salary. Address material changes deliberately, rather than letting the extension surface them.
3. Consider premium processing for critical roles. Premium processing does not prevent an RFE, but it shortens the initial decision window and gives earlier notice if one is issued.
4. Make sure counsel is alerted to work changes for impacted employees. The best way to prevent future problems is ensure compliance today. Discuss changes to worksites, job responsibilities, and compensation with counsel in real time.
5. Decide whether to comment. Employers with significant extension volume can submit comments by November 13, 2026, ideally with concrete data on how longer timelines would affect operations.

Our Perspective

The most important thing about this proposal is what it does not do. It does not change who qualifies for H-1B, L-1 or O-1 status, and DHS itself does not project more denials. What it changes is predictability. For employers that manage immigration as a program, predictability is what allows extensions to be budgeted, scheduled and communicated to employees with confidence.

We also expect the impact to be uneven. Employers whose files are current and well documented should see the change mainly as additional preparation. Employers whose files reflect roles, reporting lines or worksites that have evolved since the original approval face more real exposure, because the extension would become the point where those differences are examined.

We are watching several questions as this rule moves forward:

• Timing of a final rule. DHS has not indicated when it expects to finalize the change or how it would apply to petitions pending on the effective date.
• Interaction with other proposals. 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.
• Adjudication trends. Once final, RFE patterns in the first months will show how USCIS applies the change in practice.

Meltzer Hellrung will continue to track this rulemaking and share updates as DHS moves toward a final rule. If you have questions about how the proposal could affect your 2027 extensions, your documentation practices or a potential comment, please contact your Meltzer Hellrung professional.