Tomorrow, Friday, November 13th, at midnight Eastern time, the public comment period closes on DHS's proposal to stop giving "deference" to prior approvals when USCIS reviews an extension. I wrote about what deference is when the proposal first came out, so this is the short version: where things stand, what the numbers in DHS's own proposal actually say, and what happens after the deadline.
What's being proposed
Right now, when your employer files an extension for you for the same job, with the same facts, USCIS is supposed to defer to its earlier approval unless there was a material error, a material change, or new material information. DHS's proposal would remove that rule, 8 CFR 214.1(c)(5), entirely. It would cover every petition filed on Form I-129, so H-1B, L-1, O-1, TN, E and others, but it hits hardest on same-employer extensions.
This rule has gone back and forth for 20 years
Deference started with a USCIS memo in 2004. It was rescinded in October 2017, brought back into the USCIS Policy Manual in April 2021, and then written into the regulations in the H-1B modernization rule that took effect January 17, 2025.
So if you've been here a while, you may have lived through a "no deference" stretch already. We already know, roughly, what it looks like.
What DHS' own numbers say
DHS estimates that deference applies to about 208,429 petitions a year. If this rule is implemented, they project roughly 6,044 additional RFEs a year. To put that in perspective, that's about 3% of those petitions.
DHS also points to site-visit data: out of the specific workplaces targeted for inspections following an H-1B extension filing, it reports a combined fraud or noncompliance finding rate of 22.39% from FY 2022 through FY 2025, compared with 16.77% for FY 2018 through FY 2020. That's where the "more than 1 in 5" headlines are coming from
However, it’s important to keep in mind that number combines fraud and noncompliance findings from site visits... it isn't "1 in 5 H-1B workers committed fraud.” Instead, noncompliance typically refers to administrative or paperwork discrepancies by the employer, such as an employee working from an unlisted remote location, mismatched job titles, or missing internal records, rather than intentional deception.
What happens after Friday
DHS now has to review the comments. It can publish a final rule, change it, or let it sit, and there's no timeline or effective date yet.
Until a final rule is published and takes effect, the current deference rule stays in place, and your current approval doesn't change.
If it is finalized, more RFEs on extensions likely means longer processing. While the administration claims that the last period of “no deference” did not increase denials, data says otherwise, so be prepared for that.
If your employer files your extension on time, you can keep working for the same employer for up to 240 days past your I-94 while it's pending. As always, the best gift you can give yourself is preparedness and timeliness. Please be sure to have all of your documents ready, and to encourage your employer to file the H-1B extension filing as close to the 6-month mark as possible.
TLDR
Comments close Friday, November 13, at midnight Eastern time. Please go comment.
This is still a proposal: nothing changes for your current approval, and there's no effective date. If it's finalized, expect more RFEs on extensions (DHS estimates about 6,000 more a year).
Encourage your employer to file your extension as early as possible. and keep your documents organized.
The "1 in 5" stat is a combined site-visit finding rate and is more likely to apply to employers, it is not a fraud rate for workers.
This post is for general information only and is not legal advice. For guidance on your specific situation, please consult a licensed immigration attorney.
