The Department of Homeland Security proposed ending USCIS deference to some earlier eligibility decisions on October 14, 2026, and set November 13, 2026, as the deadline for public comments. The proposal, titled “Removing Deference to Prior USCIS Determinations of Eligibility,” would change how the agency reviews certain employer-filed petitions, including H-1B extensions.
Background: USCIS Moves to End H-1B Extension Deference Under 8 C.F.R. § 214.1(c)(5)
The proposal is not in effect. The current regulation remains in force unless DHS publishes a final rule and it takes effect.
The Federal Register notice identifies the measure as 91 FR 65119–65133, CIS No. 2870-26, DHS Docket No. USCIS-2026-0529 and RIN 1615-AD26. Employers can comment before the agency decides whether to finalize the change.
Employer-filed Form I-129 petitions across several categories could face fresh review
The proposal would reach petitions filed on Form I-129, not only H-1B cases. Its most direct effect would be on extensions involving the same employer, though some amendment petitions could also be affected.
| India | China | ROW | |
|---|---|---|---|
| EB-1 | Feb 01, 2023 | Aug 01, 2023 ▲31d | Current |
| EB-2 | Nov 01, 2013 | Oct 01, 2021 | Apr 01, 2025 ▲90d |
| EB-3 | Jan 22, 2014 ▲21d | Jan 22, 2022 ▲14d | Jun 15, 2024 ▲31d |
| F-1 | Jan 22, 2021 ▲366d | Jan 22, 2021 ▲366d | Jan 22, 2021 ▲366d |
| F-2A | Oct 22, 2026 ▲30d | Oct 22, 2026 ▲30d | Oct 22, 2026 ▲30d |
| Petition category | Possible review if the proposal is finalized |
|---|---|
| H-1B | Whether the position qualifies as a specialty occupation |
| L-1 | Whether a manager meets L-1A requirements |
| O-1 | Whether the worker continues to meet the classification’s criteria |
| TN, E and P | Earlier eligibility decisions could be reconsidered in covered filings |
That review could reach the same job and employer previously approved. The proposal would not change the substantive eligibility requirements for H-1B or other nonimmigrant classifications. Employers and workers who meet those requirements would remain eligible to seek approval.
The current rule ties deference to the same parties and facts
The proposal would remove 8 CFR 214.1(c)(5). Under that provision, USCIS generally gives weight to an earlier eligibility decision when a later Form I-129 request involves the same parties and the same underlying facts.
The existing approach allows USCIS to depart from its earlier decision if it identifies a material error in the approval, a material change in circumstances or eligibility requirements, or new material information that adversely affects eligibility.
If DHS finalizes the proposal, officers could still consider prior approvals. They would no longer start from a position of deference or presume the earlier decision was correct. Each extension would receive a fresh eligibility review.
USCIS would also revise guidance that now requires officers to explain a decision not to defer and obtain supervisory approval for that decision. That procedural requirement would go along with the proposed change in how adjudicators approach a prior approval.
Employers may need to assemble evidence about the current petition rather than rely on an earlier approval as an anchor. Job duties, wage levels, worksite details, organizational charts and worker qualifications could all draw renewed scrutiny.
Herman Legal Group advises employers to keep prior approval notices but not use them as a substitute for describing the current job, employer operations and maintained status. It recommends comparing the full earlier petition with the new filing, including actual duties, worksite, client arrangements, degree requirements and employer structure, rather than matching job titles alone.
DHS estimates more evidence requests and a risk of work stoppages
DHS estimates that deference now applies to about 208,429 petitions each year. The agency projects roughly 6,044 additional Requests for Evidence annually if the proposal takes effect. Cases receiving an RFE took a median of 64 more days to decide.
A longer adjudication could affect whether a worker may keep working while an extension is pending. When an employer timely files an extension for the same employer, the worker may generally continue working for up to 240 days beyond the authorized stay while USCIS considers the petition.
If regular processing lasts beyond that period, the worker would have to stop working until USCIS approves the petition. Delays could also compound the end of automatic EAD extensions for dependents, including many H-4 spouses.
DHS published the proposal on the same day as a separate final rule confirming the end of automatic extensions for most employment authorization documents. That was a separate rule, not part of the deference proposal.
DHS cites the burden of proof and a policy history that has shifted repeatedly
DHS says the proposal would align its regulations with the statute’s assignment of the burden of proving eligibility to the petitioner, applicant or beneficiary. The agency also says the change would strengthen adjudicatory review, support immigration-system integrity and better protect U.S. workers.
The department argues that deference can shift the burden from petitioners to officers, discourage officers from requesting evidence and allow erroneous or fraudulent approvals to carry forward. The notice also addresses officer fact-finding, reconsideration of deference, reliance interests and alternatives considered.
USCIS first instructed officers to defer to prior approvals in a 2004 memorandum. It rescinded that guidance in 2017, restored it in the USCIS Policy Manual in 2021, and DHS codified the approach in December 2024. The H-1B Modernization Final Rule took effect January 17, 2025; the new proposal would reverse its codification of deference.
Comments must identify the docket and arrive through the online system
The notice provides a 30-day public comment period. Anyone submitting a comment must use regulations.gov and identify DHS Docket No. USCIS-2026-0529.
- Submit through regulations.gov before midnight Eastern time on November 13, 2026.
- Do not send comments by email or letter to DHS or USCIS officials; those submissions will not count as comments on the proposed rule.
- Do not use hand delivery, courier, mailed submissions or digital media such as CDs, DVDs or USB drives. The agencies are not accepting those formats.
People unable to use the online docket can call the Regulatory Coordination Division, Office of Policy and Strategy, USCIS, DHS, at (240) 721-3000 for alternate instructions. The Business and Foreign Workers Division, Office of Policy and Strategy, USCIS, DHS, lists its address as 5900 Capital Gateway Drive, Camp Springs, MD 20746. The same telephone number is available for further information and is not toll-free.
The Federal Register notice sets the comment deadline and docket procedures. DHS will consider submissions before deciding whether to issue a final rule.
