No Deference on Extensions, No 60-Day Grace Period: Two DHS Proposals Aimed at H-1B, O-1, and L-1 Workers

What DHS proposed

On October 14, 2026, the Department of Homeland Security published a proposed rule removing deference to prior USCIS determinations of eligibility. Today, when an employer files to extend a worker’s petition with the same parties and the same facts, USCIS starts from its earlier approval. The proposal would remove that starting point for every petition filed on Form I-129, which covers the H-1B, L-1, O-1, E, TN, and other temporary worker categories.

Four weeks earlier, on September 11, DHS published a separate proposed rule eliminating the discretionary 60-day grace period. That window currently lets a worker whose job ends stay in the US for up to 60 days to find a new employer, change status, or prepare to leave. Both proposals land on the same workers: one makes an extension harder to win, and the other removes the cushion if the job ends.

Proposal one: no deference on extensions

What deference does today

Deference has moved in and out of USCIS policy for two decades. USCIS first adopted it in a 2004 memo, rescinded it in October 2017, reinstated it in April 2021 in the USCIS Policy Manual, and wrote it into the regulations in December 2024. The current rule, 8 CFR 214.1(c)(5), says USCIS gives deference to its prior determination unless there was a material error, a material change, or new material information that undercuts eligibility. An officer who declines to defer has to acknowledge the earlier approval and explain why.

The proposal would not bar officers from considering a prior approval; it removes the requirement that they start from one. DHS says the current rule shifts the burden of proof from the petitioner to the officer and encourages officers to favor consistency over a full review.

What USCIS’s own numbers show

The proposal includes a comparison of the last period with deference and the period after it was rescinded. It covers petitions to continue or change previously approved employment, the cases deference applies to.

The request-for-evidence rate rose 4.5 points once deference was gone. RFE rates on other petitions rose 1.6 points over the same stretch, so DHS attributes about 2.9 points to the policy itself and estimates roughly 6,044 additional RFEs a year if the rule is finalized. DHS found no matching change in denial rates.

DHS prices each additional RFE at $22.17, based on an assumption that a response takes 10 minutes to prepare. Anyone who has answered an RFE on an O-1 or L-1 extension will recognize that as a floor. A real response usually means new letters, updated evidence, and weeks of added waiting while the worker’s status runs on the pending extension.

What it means for an extension filing

Without deference, the second or third petition for the same worker would be read on its own record. For an O-1, that means the officer could look again at whether the worker meets three criteria and whether the record shows sustained acclaim, even though USCIS found exactly that three years earlier. For an L-1A, it means managerial capacity can be questioned again. The safest working assumption is that every extension needs to stand up as a new petition, with current evidence rather than a reference back to the last approval.

Proposal two: no 60-day grace period

How the grace period works now

Under 8 CFR 214.1(l)(2), a worker in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status whose employment ends is not considered out of status for up to 60 consecutive days, or until the end of the authorized validity period if that comes first. It is available once per validity period and covers dependents. DHS added it in 2016 so that laid-off workers could look for a new sponsor, file to change status, or wind down their affairs without falling out of status the day their job ended.

The proposal would remove it with nothing in its place. DHS says a worker in these categories should be required to depart once the employment that formed the basis of the status ends, unless something else authorizes the stay.

Who uses it

DHS’s analysis gives a sense of scale. From FY2021 to FY2025, an average of 65,752 workers a year in these categories lost a job or changed employers, peaking at 80,034 in FY2023. Ninety-nine percent of them held H-1B status. Each year, on average, a new employer filed a petition within the grace period for 3,795 of those workers, 1,119 filed to change or extend status on Form I-539, and 385 filed for a green card on Form I-485. In FY2025 alone, new-employer petitions filed inside the grace period reached 5,178.

What would remain

The separate 10-day period at the start and end of a petition’s validity, in 8 CFR 214.1(l)(1) and, for the O-1, 8 CFR 214.2(o), is not part of the proposal. That window applies when a petition runs its full course, not when a job ends early. F-1 students are on a different track: the September 2026 rule ending Duration of Status already cut their post-program grace period from 60 days to 30.

Also final on October 14: no automatic EAD extensions

The same day as the deference proposal, DHS published a final rule ending automatic extensions for renewal work permits, effective immediately. It confirms an interim rule from October 30, 2025: a renewal application filed on or after that date no longer keeps an expiring employment authorization document valid while the renewal is pending, where it once could for up to 540 days. That matters most to green card applicants with a pending Form I-485, who are one of the two largest groups of work permit applicants, along with asylum applicants. USCIS accepts a renewal up to 180 days before the current card expires, and with no automatic extension, filing at the start of that window is the only buffer left.

How to plan around both proposals

Nothing changes for extensions or grace periods until DHS publishes final rules, and the final versions may differ. The planning still starts now, because a filing made next spring could be decided under the new rules.