The Department of Homeland Security proposed ending the deference regulation that tells U.S. Citizenship and Immigration Services to rely on prior eligibility decisions when it reviews covered extensions. Published October 14, 2026, the proposal would remove 8 CFR 214.1(c)(5), which governs the H-1B Visa and other covered petitions filed on Form I-129.
It is a proposal, not a final rule. As of October 29, 2026, the existing requirement remains in effect while DHS reviews public comments.
The department’s notice, titled “Removing Deference to Prior USCIS Determinations of Eligibility,” appears as 91 FR 65119 under DHS Docket No. USCIS-2026-0529.
The proposal reaches extensions across I-129 classifications
The change would cover H-1B, L-1, O-1, TN, E and P petitions, as well as H-2B and several other classifications. Extensions involving the same employer would feel the most direct effect. Certain amendment petitions could also be affected.
The current standard tells USCIS to defer to an earlier eligibility determination when the same parties and underlying facts remain involved. Exceptions include a material error, a material change in circumstances or eligibility requirements, or new material information that harms eligibility.
Officers could reassess eligibility from the ground up
If DHS finalizes the proposal, officers could consider an earlier approval but would not start from the presumption that it was correct. Each extension would receive a new eligibility determination.
That could reopen questions settled in an earlier petition. Officers could reassess whether a position qualifies as a specialty occupation, whether a manager meets L-1A requirements, or whether a worker continues to satisfy O-1 criteria.
The proposal would not rewrite those eligibility standards. It would change how USCIS examines a later petition, including one involving the same employer and facts.
DHS would also revise guidance directing officers to explain a decision not to defer and obtain supervisory approval. The agency considered making deference optional, allowing officers to defer when they choose, but rejected that approach because it said the option could create confusion.
DHS expects more evidence requests, not necessarily more denials
DHS estimates that the current policy applies to about 208,429 petitions each year. The department projects approximately 6,044 additional Requests for Evidence annually if it removes the requirement.
An RFE can extend the wait. Petitions that received one took a median of 64 more days to decide, according to the proposal’s estimates. DHS says its earlier removal of deference produced no corresponding change in denial rates, placing the expected effects on processing time, documentation and certainty rather than outcomes.
The agency also points to internal data showing that RFE rates rose after USCIS rescinded the policy in 2017. DHS says that increase suggests officers conducted more extensive fact-finding when they no longer had to defer to earlier determinations.
Employers would need current evidence for every extension
A prior approval would no longer anchor the next filing. Employers would need to document continuing eligibility, including current duties, wage levels, worksite details, reporting lines and worker qualifications.
That review could expose changes since the original approval. A shift in job duties, compensation, worksite or reporting structure may prompt questions when the employer files the extension. Organizational charts, too, would draw closer scrutiny.
Extensions can generally be filed up to six months before expiration. Employers are advised to budget for the staff time and expense of responding to RFEs, keep the earlier record and treat each extension with the care of an initial petition.
Site visits and third-party placements may draw attention. DHS cites higher rates of noncompliance or fraud identified during site visits involving H-1B and L-1A extensions while deference applied. Arrangements placing workers at client sites could receive particular review.
A longer wait can affect workers as well as employers. A worker with a timely filed extension for the same employer may generally continue working for up to 240 days after authorized stay expires while the petition remains pending. If processing runs beyond that period, the worker may have to stop working until USCIS approves the extension.
That risk can reach dependents. DHS issued a separate companion final rule on the same day as the deference proposal, ending automatic extensions for most employment authorization documents. That separate rule ends automatic validity extensions for people in certain employment categories who timely filed renewal applications, including many H-4 spouses. Delays under the deference proposal can also complicate travel, project staffing and dependent filings.
DHS says the petitioner must establish eligibility again
DHS argues that the current approach shifts the burden of proof from employers to adjudicators, discourages evidence requests and can carry forward erroneous or fraudulent approvals. The agency says a petitioner should establish eligibility anew rather than require officers to justify departing from a previous decision.
The department describes the proposal as a way to encourage independent review, strengthen program integrity and support stated priorities to protect U.S. workers. It also says the policy has created a default assumption that earlier approvals were correct.
Richard T. Herman, founder of Herman Legal Group in Cleveland, described the question employers may ask when an extension is challenged: “They approved this job last time. Why would the extension be questioned?” He said an earlier determination can receive weight without guaranteeing a later approval.
“Deference is not automatic renewal. An extension request still needs current evidence.”
The policy has shifted before. USCIS first told officers to defer to earlier approvals in a 2004 memorandum, citing consistency and efficiency. The agency rescinded that guidance in 2017 during President Donald Trump’s first administration, then restored it in the USCIS Policy Manual in April 2021.
DHS later codified the rule in its H-1B Modernization Final Rule in December 2024. That rule took effect January 17, 2025. The new proposal would reverse that codification.
Public comments are due November 13
The department opened a 30-day public comment period. Comments must identify DHS Docket No. USCIS-2026-0529 and go through regulations.gov by November 13, 2026.
DHS must review the submissions before issuing a final rule. The department could change the proposal before then, and the existing requirement remains in place in the meantime.
