H-1B and L-1A Policy Changes in October 2026: Deference Ends, Fee Blocked, Evidence Matters More

A lot has moved for H-1B and L-1A in the last few weeks. Some of it is final, some is blocked in court and some is only a proposal. This post separates the three, because mixing them up is how people make wrong decisions.

This is general information, not legal advice. Check your own facts with an immigration attorney.

1. DHS proposes ending deference to prior approvals (October 14, 2026)

On October 14, 2026, DHS published a proposed rule titled Removing Deference to Prior USCIS Determinations of Eligibility in the Federal Register (docket USCIS-2026-0529).

What deference is. A rule added in December 2024 (8 CFR 214.1(c)(5)) told officers to defer to an earlier approval on an extension when the parties and facts are the same, unless there is a material error, a material change or new adverse information.

What DHS proposes. Remove that rule. Officers would look at each extension on its own evidence. DHS argues the burden of proof belongs to the petitioner, that deference can discourage thorough review, and that it overstated the efficiency gains in 2024. It estimates added costs to petitioners from more requests for evidence.

What does not change. The eligibility requirements themselves. This is not a new test for H-1B or L-1A. It removes the "you were approved before" comfort on extensions.

Status. It is a proposal. Comments are due November 13, 2026, and no effective date is set. Until a final rule is published, the current deference rule stays in force.

Why it matters for L-1A. An L-1A extension has often been treated as routine. If deference goes, the extension has to prove the manager or executive role again, with current duties, organization and evidence. For a new-office petition that already runs on a one-year approval, the extension is the real test.

2. The $100,000 H-1B fee: blocked, but not settled

A September 2025 proclamation required a $100,000 payment for certain new H-1B petitions. Two courts have since ruled against it:

• June 8, 2026: the District of Massachusetts (Judge Sorokin) vacated the proclamation, finding the fee operated like a tax without clear congressional authorization and skipped required rulemaking.
• September 30, 2026: the Northern District of California (Judge Gilliam, Global Nurse Force v. Trump) vacated and enjoined the fee policies, including the extension issued in September 2026, until notice-and-comment rulemaking is completed.

The government can appeal, and the proclamation was extended through September 2027. DHS has also proposed a separate fee rule. So the fee is blocked today, but employers should confirm the current status with counsel before every filing.

3. H-1B selection is now weighted by wage

A final rule published December 29, 2025 replaced the random lottery with a wage-weighted selection. Registrations receive one to four entries based on the Department of Labor wage level (I to IV) matching the offered salary. USCIS completed FY 2027 selection on March 31, 2026 under this system.

Employers must state the wage level at registration and document it if selected. USCIS may deny or revoke if the wage level was inflated or the employee is later paid less than certified. The practical effect is that a higher offered wage improves selection odds, and entry-level roles still enter but with fewer chances.

4. USCIS can deny an incomplete filing without an RFE (August 5, 2026)

USCIS updated its guidance on August 5, 2026. Officers may deny a petition that does not establish eligibility, or lacks required initial evidence, without first issuing an RFE or NOID. We covered the details in USCIS Updates Its Guidance on RFEs and NOIDs.

Together with the deference proposal, this means the first filing and every extension carry more weight. The statutory L-1A and H-1B requirements did not change. The procedural cushion did.

What L-1A applicants and employers should do

• Describe actual duties, not titles. A CEO, director or vice president title does not establish managerial or executive capacity by itself. Officers look at what the person does day to day, who does the operational work and how much authority the role has.
• Make the organization consistent. An org chart helps only when it matches payroll, job descriptions, contracts and the business plan.
• For new offices, show the path. Formation and ownership records, capitalization, lease, hiring plan, projections and evidence of real activity should be in the file before filing, not after.
• Prepare extensions as if they were first filings. Keep a running record of hires, revenue, decisions and the beneficiary's duties throughout the approval period, so the extension does not start from zero.

What H-1B applicants and employers should do

• Confirm the wage level before registration and keep the support for it. Underpaying against a certified level is now a denial and revocation risk.
• Check fee status before filing. Do not assume the $100,000 fee is gone or permanent. Confirm with counsel at the time of filing.
• Build extension evidence continuously. If deference ends, each extension needs to stand on its own record.
• Do not depend on one route. Employer-dependent status carries all of these risks. Applicants with strong individual evidence can also evaluate O-1A, EB-1A or EB-2 NIW. See how the routes compare and our earlier note on H-1B extension and PERM employer dependence.

The common thread

Every change above points the same way: less benefit of the doubt, more weight on a complete record. That does not mean a stronger case is harder to win. It means gaps are found earlier and cost more. Showing, for each claim, which document proves it and where the evidence is thin is the most reliable way to prepare.

Meritocrat helps you do that preparation. It cannot promise an outcome, and it is not a law firm. You can check where your evidence stands with the free EB-1A, EB-2 NIW or O-1 assessment before you decide how to proceed with counsel.

Sources

• Removing Deference to Prior USCIS Determinations of Eligibility, Federal Register, October 14, 2026
• DHS Proposal Would Eliminate I-129 Deference Policy, NAFSA
• Judge Strikes Down Latest Version Of $100,000 H-1B Immigration Fee, Forbes
• Mass. Court Strikes Down $100K H-1B Visa Fee, Clark Hill
• The New Wage Rule and the $100K Proclamation, Employment Law Worldview
• USCIS Completes Fiscal Year 2027 H-1B Lottery, Ogletree
• New USCIS Evidence Rules for L-1 Visas, Visum USA