DHS Proposes Ending Deference to Prior Approvals for USCIS I-129 Extensions

The Department of Homeland Security (DHS) proposed ending the requirement that U.S. Citizenship and Immigration Services (USCIS) defer to prior eligibility decisions in Form I-129 cases. The change would reach employers and workers seeking I-129 extensions.

The proposal appeared on October 14, 2026. The existing regulation remains in effect, and the comment deadline is November 13, 2026. That date is not an effective date.

All Form I-129 filings would fall within the proposal

The proposed policy covers benefit requests filed using Form I-129, not just H-1B petitions. The form also supports filings for L-1, O-1, TN, E and P workers, among other nonimmigrant classifications.

Same-employer extensions would be among the cases most directly affected. Some amendment petitions could also be covered. The proposal does not create a blanket rule for visa applications at consulates or inspections at the border.

An extension of a petition and an extension of a worker’s stay are distinct matters. Dependents may seek extensions using Form I-539; the I-129 proposal does not replace that filing.

Prior approvals could be considered without controlling the review

The current regulation, 8 CFR 214.1(c)(5), directs officers to defer to an earlier eligibility finding when the parties and underlying facts are the same. It allows exceptions when the earlier decision contained a material error, circumstances materially changed, or new adverse information emerged.

The proposal would remove that required starting point. Officers could still take an applicable prior approval into account, but they would not be obligated to give it deference.

The proposal would also remove current guidance requiring officers to explain a decision not to defer and obtain supervisory approval. DHS considered making deference optional, but rejected that approach.

DHS says deference can lead officers to favor consistency and speed over a full examination of the evidence. It argues the petitioner, not the agency, remains responsible for proving eligibility. The department also says some petitioners treated the policy as reducing their obligation to show they still qualify.

DHS links deference to fact-finding and fraud concerns

The department points to site visits in H-1B and L-1A cases. It says the combined share of visited sites where officials found non-compliance or fraud was higher during years when a deference policy operated. DHS acknowledges other factors may also have contributed.

“While DHS acknowledges that other factors besides or in addition to deference may have led to this higher percentage of identifying fraud or non-compliance, it is reasonable to conclude that deference was one of the contributing factors.”

DHS says the new approach would encourage closer review of each filing and could surface earlier errors, inconsistencies or indicators of fraud. The finding does not establish that deference alone caused the site-visit results.

The department also recognizes that employers may have made business plans and workers may have organized careers or personal lives around prior approvals. It views those reliance interests as limited because an earlier decision does not itself ensure a later extension.

DHS codified the existing deference policy in 2024. The current regulation remains operative while the department reviews the proposed change.

More evidence requests could lengthen extension waits

DHS estimates that a petition receiving a request for evidence took an average of 64 additional calendar days to decide in its FY 2022–FY 2025 data. That is an average, not a prediction for an individual case. The department says more evidence requests could add to processing pressure.

A timely filed extension with the same employer may generally allow the worker to continue working for up to 240 days after authorized stay expires while the request remains pending. A longer wait could bring a case closer to that limit; premium processing may be considered when a decision is needed sooner.

Employers preparing future filings can compare the earlier petition with current duties, worksite, compensation and supporting records. Any differences should be explained with evidence. A prior approval remains relevant, but it does not prove that current facts are unchanged.

DHS has not indicated when it expects to finalize the change or how it would apply to petitions pending on the effective date. Until a final rule changes the regulation, the existing deference requirement remains in force.

Comments must reach the docket before the deadline

Interested parties must submit written comments through regulations.gov and identify DHS Docket No. USCIS-2026-0529. Email, mailed letters and other delivery methods will not count as comments on the proposal.

DHS has not provided a finalization date. Readers can follow the docket for further rulemaking action.