DHS Proposes New H-1B Extension Rule: US Workers Could Face Tighter Scrutiny Even at Same Employer | Today’s news
Thousands of H-1B visa holders and other foreign workers in the US could face tougher checks when applying for work permit extensions under a new proposal from the Department of Homeland Security (DHS).
The proposal seeks to eliminate a rule that requires USCIS to consider its own prior consent when considering an extension request filed by the same employer for the same worker and job.
The Times of India, citing immigration law firm Reddy Neuman Brown, said the proposed change could affect around 208,429 petitions a year. Visa categories covered include H-1B, L-1, O-1, TN, and E visas.
The proposal was published on October 14, 2026, and the public can submit comments until November 13, 2026.
However, the proposal is not yet complete. The existing rule will continue to apply unless DHS issues a final rule and becomes effective.
What does DHS propose to change?
Under current rules, USCIS generally gives weight to earlier approval when the same employer applies to extend worker status for the same jobs and under the same circumstances.
However, immigration officials may reconsider an earlier decision if they discover a significant error, change in circumstances, or new information that affects the worker’s eligibility.
DHS now wants to remove this requirement by deleting 8 CFR section 214.1(c)(5) and designating the provision as “Reserved.”
If the proposal becomes a final rule, USCIS officials will be able to review extension requests again without having to pursue prior approval. This means they could go back to issues that have already been investigated, even if the employee continues to work for the same employer in the same role.
The deference policy was first implemented through a USCIS memorandum in 2004. The agency withdrew it in 2017 but reinstated it in 2021. DHS later included the policy in the 2024 H-1B Modernization Rule, which took effect in January 2025.
H-1B visa holders could face more requests for evidence
H-1B petitions account for more than 75% of all Form I-129 filings, according to DHS. As a result, H-1B workers could be among those most affected by the proposed change.
If this rule is implemented, employers could receive more Requests for Evidence (RFEs) when applying for routine visa extensions. USCIS officials may request additional documents or revisit questions such as whether the job meets the requirements of a specialty occupation.
DHS estimates that the proposed change could result in approximately 6,044 additional RFEs each year.
The department’s analysis also found that rejection rates did not show a statistically significant difference between periods when the deference policy was in place and when it was not.
How might the proposed rule affect foreign workers?
If the proposal becomes law, workers seeking visa extensions could face more uncertainty, even if their employer, job role and working conditions remain unchanged.
