USCIS May End Deference to Prior Approvals for I-129

Opening Summary

Employers have until Friday, November 13, 2026, to comment on a proposed rule from the Department of Homeland Security (DHS) that would change how U.S. Citizenship and Immigration Services (USCIS) reviews nonimmigrant extension petitions.

DHS proposes removing 8 CFR 214.1(c)(5), the regulation that currently directs USCIS officers to give deference to prior determinations of eligibility when adjudicating certain extension requests involving the same parties and underlying facts.

The proposal, titled Removing Deference to Prior USCIS Determinations of Eligibility, was published in the Federal Register on October 14, 2026, at 91 FR 65119.

If finalized, the change would end the existing regulatory deference policy for qualifying extension petitions filed on Form I-129, including H-1B, L-1, and O-1 classifications. USCIS officers would no longer be required to defer to a prior approval simply because the petitioner and beneficiary had previously established eligibility under substantially the same circumstances.

The rule has not been finalized. The current deference regulation remains in effect while DHS considers public comments.

What the Proposed USCIS Deference Rule Would Change

Under the current regulation, USCIS officers generally defer to a prior eligibility determination when adjudicating extension requests involving the same parties and underlying facts as a previously approved petition.

This approach recognizes that USCIS has already evaluated the petitioner's eligibility and the beneficiary's qualifications. For a qualifying extension request, the existing deference policy generally allows officers to rely on that earlier determination rather than reassessing every element without regard to the prior approval.

However, deference to prior approvals is not automatic. USCIS may decline to defer to a prior approval when:

• The previous decision involved a material error.
• There has been a material change in the circumstances affecting eligibility.
• New material information adversely affects the petitioner's or beneficiary's eligibility.

These exceptions allow USCIS officers to reconsider prior determinations when new material facts or other relevant information call the earlier approval into question.

The DHS proposed rule would remove the regulatory requirement to give deference to its prior approval in qualifying cases. It would not replace that requirement with another deference provision.

Importantly, DHS clarifies that the proposal “would not prohibit USCIS officers from considering a prior approval where relevant.” Instead, it would remove the requirement that officers begin their review from a position of deference.

An earlier approval could therefore remain relevant to a new extension petition. However, USCIS officers would have greater discretion to independently evaluate whether the petitioner has established continued eligibility.

Which Nonimmigrant Extension Petitions Could Be Affected?

The proposed change would affect the framework USCIS uses when adjudicating extension requests involving nonimmigrant classifications filed on Form I-129.

These include E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P, Q-1, R-1, and TN workers.

For employers sponsoring foreign professionals, the potential effects may be especially relevant to upcoming extensions involving H-1B specialty occupation workers, L-1 intracompany transferees, and O-1 individuals with extraordinary ability or achievement.

The proposal would not eliminate these visa classifications or change their underlying eligibility requirements. Instead, it would change how USCIS considers prior determinations when adjudicating extension requests.

DHS also considered a less restrictive alternative that would state USCIS “may give deference in its discretion.” The agency rejected that option, explaining that it could create confusion about when officers should defer to a prior eligibility determination.

Why DHS Proposes Ending Deference to Prior Determinations

The USCIS deference policy has changed several times over the past two decades.

According to the proposed rule, USCIS first applied a policy of deference to prior determinations in 2004. That approach continued until 2017, when USCIS rescinded the earlier policy.

In 2021, USCIS issued guidance restoring deference to prior approvals in qualifying extension cases. The policy guidance directed officers to consider earlier eligibility findings when the parties and underlying facts remained the same, subject to specified exceptions.

DHS subsequently incorporated the deference policy into federal regulations through the December 2024 H-1B modernization final rule, published at 89 FR 103054.

The 2026 proposal would reverse that regulatory change.

Why DHS Wants to Remove the Deference Regulation

DHS argues that requiring officers to defer to prior determinations of eligibility can effectively shift the statutory burden of proof from the petitioner to USCIS.

Under Section 291 of the Immigration and Nationality Act (INA), the petitioner generally bears the burden of establishing eligibility for the immigration benefit requested.

DHS maintains that the existing deference regulation can create tension with that requirement by directing USCIS officers to rely on a previous eligibility determination unless specific circumstances justify departing from it.

The agency's position is that each petition should establish eligibility under the applicable requirements, even when USCIS previously approved a similar request.

Removing the regulation would give officers greater flexibility to independently adjudicate extension filings without the existing regulatory obligation to defer to prior approvals.

What USCIS Site-Visit Data Shows

DHS also points to compliance and fraud findings from site visits involving H-1B and L-1A extension petitions.

The proposed rule reports the following combined non-compliance and fraud findings:

Source: DHS proposed rule, 91 FR 65119. Percentages represent combined non-compliance and/or fraud findings among sites visited during the specified fiscal years.

DHS cites these figures as part of its rationale for reconsidering the deference policy.

However, the data does not, by itself, establish that deference caused the higher findings.

The agency also reports that requests for evidence increased after USCIS rescinded deference in 2017. DHS acknowledges that other factors may have contributed to that increase and that differences in denial rates were not statistically significant.

These qualifications matter when evaluating the proposal's potential effects on USCIS adjudication and employer extension filings.

How the Proposed Rule Could Affect USCIS Extension Petitions

DHS estimates that removing the deference regulation would create approximately $133,987 in additional annual costs for petitioners, primarily because of an anticipated increase in requests for evidence (RFEs).

This estimate reflects the additional time burden associated with preparing responses to an estimated 6,044 additional RFEs annually. It does not capture every potential expense or operational impact.

The agency also identifies costs it did not quantify, including longer adjudication times, uncertainty surrounding continued employment, and additional resources needed to prepare and review more comprehensive petitions.

For employers managing multiple nonimmigrant workers, even modest changes in the extension process could affect filing schedules, internal resources, and workforce planning.

More Evidence May Be Needed for Extension Filings

Under the existing policy, an employer submitting a qualifying Form I-129 extension petition may benefit from USCIS deference to its prior approval when the relevant facts have not materially changed.

Without deference, USCIS officers could conduct a more independent review of the evidence supporting the extension request.

That does not mean every extension petition would receive an RFE or that previously approved petitions would suddenly become ineligible.

It does mean employers may need to consider whether their extension filings contain sufficient documentation to establish eligibility without relying primarily on an earlier approval.

Depending on the nonimmigrant classification, relevant documentation could include evidence of the employer's operations, the beneficiary's qualifications, the offered position, and the continuing circumstances supporting the requested status.

Potential Changes to USCIS Adjudication and Processing

A more extensive review of extension petitions could also influence adjudication timelines.

According to USCIS data cited in the proposed rule, from FY2022 through FY2025:

• Petitions receiving an RFE had an average median processing time of 76 days.
• Petitions without an RFE had an average median processing time of 12 days.
• The difference was 64 calendar days.

These figures measure the time between petition receipt and the initial decision. They illustrate the processing-time differences associated with RFEs during the historical period, rather than predicting how long any individual petition would take under the proposed rule.

If removing deference leads to more RFEs, employers and beneficiaries could experience additional delays while gathering documentation and awaiting final decisions.

For companies with steady extension pipelines, several practical questions arise:

• How would an extension petition read if a USCIS officer reviewed it without deference to the prior eligibility determination?
• What supporting evidence of the position, employer, and beneficiary's qualifications is currently available?
• How much lead time exists before the worker's current nonimmigrant status or petition validity expires?
• Where might premium processing fit into the employer's filing timeline?

The answers may differ substantially between an H-1B extension, an L-1 petition, and an O-1 extension request.

The proposal does not establish that every extension would require the same additional evidence or experience the same processing delays.

How to Comment on the USCIS Proposed Rule by November 13

Comments must be submitted before midnight Eastern Time at the end of November 13, 2026 (by 11:59 p.m. ET).

Employers, immigration attorneys, foreign professionals, and other interested parties can submit written comments through Regulations.gov under docket USCIS-2026-0529.

The Federal Register notice explains that comments submitted by email or letter will not be treated as formal comments on the proposed rule. DHS is not accepting hand-delivered or mailed submissions.

Comments must be written in English or accompanied by an English translation.

Submissions are also posted publicly, including any personal information provided.

The public comment period gives interested parties an opportunity to address the proposed removal of deference to prior determinations, its potential effects on extension petitions, and the agency's supporting analysis.

After reviewing comments, DHS may finalize the rule, modify the proposal, or decide not to proceed.

Until a final rule takes effect, the existing USCIS deference regulation remains in place.

Contact Cogent Law's Immigration Attorneys

Changes to USCIS policy and nonimmigrant petition requirements can create important questions for U.S. employers, entrepreneurs, and foreign professionals.

Cogent Law's Immigration team assists clients with U.S. immigration law matters, including employment-based visa petitions and extension filings.

Glaucia Milanez, a Partner at Cogent Law, focuses on U.S. immigration and cross-border matters. Her practice includes H-1B professional and specialty occupation visas, L-1 intracompany transferee petitions, O-1 extraordinary ability visas, and responding to government requests for additional evidence.

To discuss how the DHS proposed rule may affect your business or upcoming extensions, contact Cogent Law or call 202-644-8880.

Related Practice Areas