DHS proposes new H-1B extension rule: Workers in US could face stricter checks even with same employer

The proposal seeks to remove a rule that requires US Citizenship and Immigration Services (USCIS) to consider its own previous approval when reviewing an extension application filed by the same employer for the same worker and job.

Thousands of H-1B visa holders and other foreign workers in the US could face stricter checks when applying to extend their work permits under a new proposal by the Department of Homeland Security (DHS).

The proposal seeks to remove a rule that requires US Citizenship and Immigration Services (USCIS) to consider its own previous approval when reviewing an extension application filed by the same employer for the same worker and job.

Times of India citing immigration law firm Reddy Neuman Brown said the proposed change could affect around 208,429 petitions every year. The 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 has not yet been finalised. The existing rule will continue to apply unless DHS issues a final rule and it comes into effect.

What is DHS proposing to change?

Under the current rules, USCIS generally gives weight to an earlier approval when the same employer applies to extend a worker's status under the same job and circumstances.

However, immigration officers can reconsider an earlier decision if they find a significant error, a change in circumstances or new information that affects the worker's eligibility.

DHS now wants to remove this requirement by deleting Section 8 CFR 214.1(c)(5) and marking the provision as “Reserved”.

If the proposal becomes a final rule, USCIS officers will be able to review extension applications afresh without being required to follow an earlier approval. This means they could revisit issues that were already examined, even if the employee continues to work for the same employer in the same role.

The deference policy was first introduced through a USCIS memorandum in 2004. The agency withdrew it in 2017 but brought it back in 2021. DHS later included the policy in the H-1B Modernization Rule in 2024, which came into 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 the rule is implemented, employers could receive more requests for evidence (RFEs) when applying for routine visa extensions. USCIS officers may ask for additional documents or take another look at issues such as whether a job meets the requirements of a specialty occupation.

DHS estimates that the proposed change could lead to around 6,044 additional RFEs every year.

The department's analysis also found that denial rates did not show a statistically significant difference between periods when the deference policy was in place and when it was not.

How could the proposed rule affect foreign workers?

If the proposal becomes law, workers seeking visa extensions could face greater uncertainty, even if their employer, job role, and working conditions remain unchanged.

About the Author

Kanishka Singharia is a Senior Content Producer at Mint with a passion for news, trends, and the stories shaping the digital world. She specialises in spotting viral narratives by constantly tracking social media platforms and turning them into engaging, reader-friendly stories. Her work ranges from fast-paced breaking updates to sensitive human-interest features, blending speed with clarity. <br><br> With over four years of experience in news and trend reporting, Kanishka has worked with leading organisations such as Hindustan Times and Times Now. She moves seamlessly between profiling business leaders and telling the stories of everyday people, covering national developments just as effortlessly as the memes and conversations that dominate online culture. <br><br> She also reports on real estate developments and civic challenges in major urban hubs like Bengaluru, Delhi, and Gurugram. Her coverage frequently explores the struggles of startup founders, inspiring journeys of CEOs, and the experiences of candidates dealing with the complexities of visa processes. <br><br> Kanishka holds an undergraduate degree in Journalism from Delhi University and a diploma from the Indian Institute of Mass Communication. Rarely offline, she spends much of her time scrolling through X, LinkedIn, Reddit, Instagram, and Facebook in search of the next big story. When she finally logs off, she enjoys binge-watching shows and exploring cafes in pursuit of good food and better conversations.