H-1B Deference Rule Repeal: What DHS Is Proposing and How It Changes Extensions

In October 2026, DHS proposed a rule that would end deference to previously approved I-129 petitions — a change affecting H-1B, L-1, O-1 and other work visa extensions that could raise denial rates and trigger more RFEs.

In short

• DHS proposed ending deference — extensions for H-1B, L-1, O-1, TN and other I-129 visas would again be reviewed from scratch, without relying on a prior approval.
• After the 2017 deference repeal, H-1B extension denials rose to 24%; DHS itself projects a 2.9% rise in RFEs and a 64-day increase in processing time.
• H-1B approvals without the $100,000 fee have been documented — but only for nurses and medical technologists filing from outside the US.
• The 540-day EAD auto-extension has been eliminated for applications filed on or after October 30, 2025; DHS estimates 20,000–30,000 people could lose work authorization in an 18-month window starting May 2027.
• The comment period on the proposed $70,000 OPT fee closes November 9; comments on a separate rule close November 13.

What Is Deference and Why DHS Wants to End It

Deference to prior approvals is the principle under which a USCIS officer reviewing a petition extension relies on a previously approved case instead of evaluating it from scratch as if it were new. The logic is simple: if a petitioner is extending an H-1B with the same employer and the job duties haven’t fundamentally changed (for example, a developer was promoted from junior to senior in the same role), a full re-review isn’t necessary — the prior approval already confirmed the position met visa requirements. For the officer, this means faster and simpler adjudication; for the petitioner, a more predictable extension decision.

The principle hasn’t stayed constant over the years. USCIS first introduced it in 2004 through a standalone memo. On October 7, 2017, the first Trump administration rescinded it. In April 2021, under the Biden administration, deference was restored, and in December 2024, according to the source material, it was codified into regulation rather than left as internal guidance. Now, in October 2026, DHS has proposed a new rule that would again end this principle.

As of this publication, the deference rule is still formally in effect: the DHS proposal is currently a draft, not a rule that has taken force. But this is exactly what DHS intends to change, and the goal of the proposal is to have every new petition — including extensions — reviewed from scratch, without automatically relying on a prior approval.

Who the Deference Repeal Affects: H-1B, L-1, O-1 and Other I-129 Visa Categories

The new rule applies to all forms and visa categories that use Form I-129 — this includes H-1B, L-1, O-1, TN and others. The deference repeal is not limited to a single category.

This is still a proposed regulation, not a rule in effect: it does not directly affect petitions filed today.

How the Denial Rate and Number of RFEs for H-1B Extensions Could Change

There’s already a precedent: when deference was rescinded in 2017, the H-1B extension denial rate climbed to 24% at its peak. By comparison, the current rate sits at 3.5% — meaning a repeat repeal could produce a multi-fold jump.

when deference was rescinded in 2017, the H-1B extension denial rate climbed to 24% at its peak

The scale of the issue is set by filing volume: roughly 208,000 extension petitions are filed on Form I-129 each year. In the text of the proposed rule itself, DHS states an expected increase in RFE (Request for Evidence) frequency of 2.9% — in absolute terms, about 6,000 additional requests per year. Each such request means extra correspondence with USCIS and a real risk to the petitioner’s status while awaiting a response.

The rule also factors in a 64-day increase in extension processing time.

H-1B Approvals Without the $100,000 Fee: Who and Why

The $100,000 H-1B fee took effect between September 21–25, 2025, following a proclamation that was then challenged in court; its enforcement has since been extended through September 2027. Despite this, consular processing cases have already shown H-1B approvals issued without payment of this fee.

Attorney Lo Pham reported these cases on her blog: the applicants were outside the United States at the time, and approvals were granted for both cap-subject and cap-exempt visas. What unites all the approved applicants is their profession — registered nurses and medical technologists. In their cases, the standard 15-day premium processing window was exceeded, but USCIS issued the approval anyway.

What unites all the approved applicants is their profession — registered nurses and medical technologists

Importantly, these approvals surfaced after a second court ruling that also attempted to block enforcement of the fee, even though litigation on the matter continues. For those currently outside the US and planning to file for H-1B, this shows that approvals without paying the $100,000 fee are possible in practice — though until the court disputes are resolved, no one is guaranteed this outcome.

Changes to Premium Processing Timelines for H-1B, L-1, O-1, I-140 and OPT

USCIS has submitted a request to OMB to change premium processing timelines — the document isn’t flagged as economically significant, so a decision could come quickly, but no rule text with specific figures exists yet.

Current timelines are as follows:

Form / Category	Premium Processing Time
H-1B, L-1, O-1	15 business days
I-140	15 business days
I-140 EB1C (managers) and NIW	45 business days
F-1 OPT, STEM OPT (work authorization)	30 business days
I-539	30 business days

USCIS’s goal is to get more time for petition review, not to speed it up. This means new timelines will likely be longer than current ones, but there are no specific figures until the rule is published.

The End of 540-Day Automatic Extension for H-4 EAD and I-485 EAD

The rule allowing automatic 540-day extension of work authorization was rescinded by DHS through an interim rule on October 30, 2025, and finalized on October 14, 2026 — meaning restoring the 540-day auto-extension retroactively will be significantly harder going forward. The substance of the rule: while USCIS reviewed an EAD renewal application, the cardholder could keep working for up to 540 additional days past the old card’s expiration.

For applications filed on or after October 30, 2025, this safety net no longer exists. DHS states it wants to fully vet every application before extending work authorization — and despite a large volume of critical public comments, none of them changed the final decision.

This will hit hardest for holders of H-4 EAD (category C26 — H-1B spouses) and I-485 EAD (category C09 — green card applicants), as well as asylum applicants (category C08): once the card expires, work must stop immediately, with no right to automatic extension. If the renewal application was filed before October 30, 2025, the old 540-day rule still applies; for any later filing, it does not.

By DHS’s own estimate, in an 18-month window starting in May 2027, between 20,000 and 30,000 people could lose their right to work due to EAD expiration. For this category of work permit holders, there is no longer a safety net for delays in processing renewals.

in an 18-month window starting in May 2027, between 20,000 and 30,000 people could lose their right to work due to EAD expiration

Other News This Week: Ghost Slots, OPT Fees and Comment Deadlines

No mass release of new H-1B and H-4 consular slots occurred this week. Occasionally, individual “ghost slots” appear and vanish — applicant communities notice and discuss them, but in practice this isn’t a systemic appointment opening, just scattered windows, often for OFC rather than a full consular interview. Recommendation for those waiting on a visa stamp: if your current visa is still valid, travel is possible; if it has expired and there’s no urgent need to travel, it’s best to hold off — the risk of getting stuck outside the US remains.

What stayed unchanged this week: the duration-of-status rule remains blocked, with no updates; the lawsuit over CPT training has been filed, but no hearing date has been set; the suspension affecting roughly eight companies continues with no new developments.

The proposed $70,000 fee for OPT is currently in its public comment period — anyone who might be affected has the opportunity to submit feedback. The comment period for this fee closes on November 9, while comments on a separate rule close on November 13. Separately: a USCIS rule on shifting deadlines that fall on weekends and holidays takes effect on October 23. And one more administrative date — January 3, when the current Congressional session ends: any bills not passed by then are voided and must be reintroduced.

Frequently asked questions

If my extension petition is already pending, will the deference repeal affect it

No, not directly: the DHS proposal to end deference is currently a draft rule, not a rule in effect. Until the regulation is finalized, USCIS continues to apply the currently active deference principle to pending cases.

Does the deference repeal apply to already-approved extensions, or only to new filings

If finalized, the rule would change how new petitions are reviewed — primarily extensions filed on Form I-129 after the rule takes effect. Previously issued approvals, as decisions on closed cases, are not subject to review; the repeal concerns the approach to future filings.

What should I do if I receive an RFE on my H-1B extension after the deference repeal

An RFE is a request for additional evidence, not a denial: it must be answered within the deadline USCIS sets, providing the requested documentation about the position and duties. The number of such requests is expected to rise by roughly 6,000 per year, and the petitioner’s status is at risk while awaiting a response, so missing the deadline is not an option.

Can I currently count on an H-1B approval without the $100,000 fee if I’m not a nurse or medical technologist

The documented fee-free approvals specifically involved registered nurses and medical technologists filing through consular processing from outside the US. There’s no basis to extend this precedent to other professions — while litigation over the fee continues, no outcome is guaranteed for anyone.

Should I change my plans now because of the expected premium processing timeline changes

Not yet: USCIS has only submitted a request to OMB to change the timelines, and no rule text with specific figures exists yet. Since the goal of the request is to gain more review time, new premium processing timelines will almost certainly be longer than current ones, but no publication date for the rule has been announced.

What should an H-4 EAD or I-485 EAD holder do if their card is about to expire and the renewal hasn’t been approved yet

If the renewal application was filed on or after October 30, 2025, the 540-day automatic extension no longer applies: work must stop on the day the card expires, and you must wait for a decision without the right to work. The 540-day safety net only remains for those who filed before that date.

Is it worth traveling for a visa stamp right now if my visa has already expired

If your visa has already expired and there’s no urgent need to travel, it’s best to hold off: there’s no systemic opening of consular appointments, only isolated slots that appear and vanish quickly, and the risk of getting stuck outside the US remains.

Can I still submit a comment on the proposed $70,000 OPT fee

Yes, the comment period for this fee is still open and closes on November 9 — anyone who might be affected still has time to submit feedback before that date. Comments on a separate rule, mentioned above, close later, on November 13.