Has your company extended an H-1B, L-1, O-1, or TN worker whose job hasn't changed? Then that extension was reviewed under a rule telling USCIS to defer to its own earlier approval. The Department of Homeland Security now proposes to delete that rule. If it does, every extension would be judged on its own evidence, with no presumption that the last approval got it right.
What happened
On October 13, 2026, DHS placed a notice of proposed rulemaking on public inspection: Removing Deference to Prior USCIS Determinations of Eligibility (FR Doc. 2026-20941; CIS No. 2870-26; DHS Docket No. USCIS-2026-0529; RIN 1615-AD26). It is scheduled for Federal Register publication on October 14, 2026.
The regulatory text is one line long. DHS would remove 8 CFR 214.1(c)(5) and mark it "[Reserved]."
To be clear, this is a proposal. Nothing changes until DHS issues a final rule. Comments are due 30 days after publication, and they must go through regulations.gov under the docket number above.
The rule DHS wants to remove
Current 8 CFR 214.1(c)(5) kicks in when USCIS decides a Form I-129, Petition for a Nonimmigrant Worker, "involving the same parties and the same underlying facts" as a prior approval. In that case USCIS gives deference to its earlier finding of eligibility. The exceptions: a material error, a material change, or new material information that hurts eligibility.
In real life, that covers the most routine filing an employer makes. Same employer, same worker, same classification, same job, asking for more time.
Who would be affected
The proposal reaches every benefit request filed on Form I-129. The NPRM lists the classifications that use Form I-129 for extensions of stay: E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1, and TN.
The scale is real. From FY 2022 through FY 2025, an average of 208,429 petitions a year were eligible for deference — about 30 percent of all I-129 filings. DHS counted 22,748 unique employers affected.
Dependents extend their stay on Form I-539, not Form I-129, so the regulation does not reach those filings directly.
A policy that has changed four times
Deference has had a bumpy ride.
- April 2004: a USCIS memorandum first told officers to defer to prior approvals involving the same parties and facts.
- October 2017: USCIS rescinded that guidance (PM-602-0151), saying it improperly shifted the burden of proof to the agency.
- April 2021: USCIS brought deference back in the USCIS Policy Manual, Volume 2, Part A, Chapter 4.
- December 2024: DHS wrote deference into the regulations at 8 CFR 214.1(c)(5) in the H-1B Modernization Final Rule, 89 FR 103054 (Dec. 18, 2024).
So this proposal would reverse a regulation that is less than two years old. If it is finalized, USCIS says it would make matching changes to the Policy Manual.
Why DHS says deference should go
DHS gives three reasons.
Burden of proof. Under INA 291, 8 U.S.C. 1361, the petitioner has to prove eligibility. DHS cites Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), and argues that deference quietly flips that burden onto the officer, who has to justify any departure from the earlier approval.
Officer fact-finding. DHS says deference discourages officers from asking for evidence even where eligibility hasn't been shown. Its own data: after the 2017 rescission, the RFE rate for deference-eligible petitions rose 2.9 percent more than for a comparison group. DHS admits other factors may have played a part. It also concedes that denial rates did not statistically differ between periods with and without deference.
Program integrity. Here DHS leans on site-visit data. For H-1B extension cases, combined non-compliance and/or fraud at visited sites was 22.39 percent in FY 2022 through FY 2025, when deference applied, against 16.77 percent in FY 2018 through FY 2020, when it didn't. For L-1A, the figures were 24.46 percent and 18.37 percent. Again, DHS acknowledges that other factors may explain part of the gap.
What would not change
DHS is careful to draw some limits around the proposal.
Officers could still consider a prior approval where it's relevant. What goes away is the requirement that they start from a position of deference.
The substantive eligibility requirements for each classification stay the same. In DHS's words, removing deference "does not substantively change eligibility for the requested immigration benefit."
DHS also looked at a softer option — making deference discretionary ("may give deference") — and turned it down as likely to confuse both petitioners and officers.
What employers should expect: more RFEs and longer waits
DHS projects about 6,044 additional RFEs a year if deference goes away. The dollar figure it attaches is small, about $22 per RFE. But that only counts employer staff time. DHS concedes it could not put a number on the added attorney and preparation time employers may spend building fuller extension petitions.
The number that will actually matter to your team is time. From FY 2022 to FY 2025, the median processing time was 76 days for petitions that got an RFE and 12 days for petitions that didn't. That's a difference of 64 days.
Can the employee keep working while the extension is pending?
DHS addresses this head-on. Where an extension was timely filed and is still pending when the worker's status expires, the worker may remain in an authorized period of stay and may be eligible to keep working, citing 8 CFR 274a.12(b)(20).
DHS describes the cost to workers in that situation as unpredictability about when the petition will be decided. For employers, DHS notes, the longer timelines can make it harder to plan staffing, project timelines, and work assignments.
Reliance interests
DHS recognizes that employers and workers may have made plans assuming extensions would be approved. It concludes those interests are limited, because deference never guaranteed approval anyway, and because "petitioners and beneficiaries do not have a legitimate expectation that an erroneous or unsupported prior approval would continue to result in future approvals."
The proposal includes no transition provision for petitions pending when a final rule takes effect. Whether one is added will depend on the final rule.
What to do now
Build every extension as if it were a new petition. Even under current law, the petitioner carries the burden of proof. Treat the prior approval as background, not as evidence.
Review what has changed since the last approval. Job duties, worksite, wage, reporting structure, and the employer's business can all change between filings. Document them accurately.
File extensions early. With more RFEs expected, file well ahead of the status expiration date so a 64-day RFE delay doesn't collide with travel or other deadlines.
Consider commenting. Employers that depend on extensions can submit comments through regulations.gov under Docket No. USCIS-2026-0529 during the 30-day comment period.
The bottom line
Deference has gone back and forth for two decades, and this proposal would take it out of the regulations again. If that happens, extension filings stand on their own evidence. For employers with nonimmigrant workers, the change is more about preparation and timing than eligibility: fuller petitions, more RFEs, longer waits.
At Parikh & Prasad, PC, we prepare H-1B, L-1, O-1, E, and TN extensions for employers and workers. If you have extensions coming up in the next year, contact us to plan ahead.
This post is attorney advertising and is provided for general information only. It is not legal advice and does not create an attorney-client relationship. Immigration law changes rapidly; consult a qualified immigration attorney about your specific situation.
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