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DHS proposes ending deference to prior approvals in H-1B and other worker extensions

On October 13, 2026, the Department of Homeland Security proposed removing the rule that has USCIS defer to an earlier approval when an extension petition involves the same parties and facts. It would cover H-1B, L-1, O-1, TN, and other Form I-129 extensions, and it is not in effect. The same day, DHS finalized without changes its October 2025 rule ending automatic extensions for EADs renewed on or after October 30, 2025, including EADs based on a pending I-485.

Confirmed

  • Under 8 CFR 214.1(c)(5), USCIS defers to a prior approval of a Form I-129 petition with the same parties and underlying facts, unless there was a material error, a material change, or new material information that affects eligibility. The proposal would remove that provision.
  • It would apply to extensions filed on Form I-129, including H-1B, H-1B1, L-1, O-1, E, TN, H-2A, H-2B, P, Q, and R-1. Officers could still consider a prior approval, but would no longer have to follow it.
  • DHS estimates that about 208,429 extension petitions a year qualify for deference, and that removing it would add about 6,044 requests for evidence (RFEs) a year.
  • Public comments are due November 13, 2026, under docket USCIS-2026-0529. The current deference rule stays in place until a final rule takes effect.
  • The final EAD rule took effect October 14, 2026 and keeps the October 30, 2025 interim rule without changes. An EAD renewal filed on or after October 30, 2025 does not extend the old card, so work authorization stops if the new EAD is not approved before the old one expires. This covers EADs based on a pending I-485 and H-4 spouse EADs.
  • EADs already extended by a renewal filed before October 30, 2025 keep that extension.
  • USCIS generally recommends filing an EAD renewal no more than 180 days before the card expires, but says it will not reject an otherwise eligible renewal only because it was filed earlier.

Still unclear

  • Whether DHS will finalize the deference proposal, and whether it would apply to extensions already pending when a final rule takes effect.
  • How often officers would issue RFEs in practice for extensions with unchanged facts.

Key dates

  1. Interim rule ends automatic EAD extensions for renewals filed from this date
  2. DHS announces the deference proposal and the final EAD rule
  3. Both published in the Federal Register; the EAD rule takes effect
  4. Public comment period on the deference proposal closes

Sources