DHS Proposes Ending Deference to Prior USCIS Approvals Under 8 CFR 214.1(c)(5)

The Department of Homeland Security (DHS) has proposed ending the general rule that tells U.S. Citizenship and Immigration Services (USCIS) to rely on its earlier approval when reviewing certain worker-extension petitions. The measure would repeal 8 CFR 214.1(c)(5), but it is not yet in effect.

The department made the proposal available for public inspection on October 13, 2026. It is scheduled for Federal Register publication on October 14, 2026, followed by a 30-day period for public comments.

Under the current regulation, officers generally defer to an earlier approval when an extension involves the same employer and worker, with the underlying facts unchanged. Exceptions apply when the agency finds a material error, a material change in circumstances, or new material information that harms eligibility.

That approach could change. If DHS finalizes the proposal, officers could examine each eligibility requirement anew, including in cases where the work and employment terms remain the same. Petitioners would still have to prove eligibility for every benefit request.

DHS estimates that about 208,429 annual extension petitions qualified for deference from fiscal years 2022 through 2025. That equals roughly 30% of an average 688,830 yearly petitions. H-1B cases are estimated to make up approximately 75% of affected extensions.

The proposal reaches extensions across a range of worker categories

The change concerns Form I-129, Petition for a Nonimmigrant Worker. It covers extensions filed for several nonimmigrant classifications:

• H-1B specialty-occupation workers, H-2A agricultural workers and H-2B temporary nonagricultural workers
• L-1 intracompany transferees and O-1 individuals with extraordinary ability
• P athletes, artists and entertainers, and Q cultural-exchange participants
• R-1 religious workers and TN professionals from Canada and Mexico
• E treaty traders and investors when their petitions use Form I-129

The proposal would not itself revise Form I-140 or Form I-485. It also would not change immigrant-visa eligibility or visa issuance by the Department of State.

DHS argues that removing the deference provision would align the regulations with the statutory allocation of the burden of proof. Under that reasoning, the petitioner, applicant or beneficiary must establish eligibility, rather than requiring an officer to explain why an earlier decision should not carry forward.

The department also says repeated reliance on earlier approvals could preserve adjudication mistakes or allow fraud and eligibility issues to continue through later extensions. It frames independent review as a way to assess the current evidence and protect program integrity.

A fresh review could bring broader evidence requests, Requests for Evidence and notices of intent to deny. DHS acknowledges that additional review could increase adjudication workloads and extend case timelines. The proposal gives no new processing-time estimate.

Employers can assemble a full record for each extension filing

Employers preparing upcoming petitions can organize evidence around the specific job and worker, rather than relying solely on a prior approval. Relevant records include:

• Current and earlier approval notices, plus detailed employer support letters that match the position and actual duties
• For H-1B cases, the certified Labor Condition Application and wage records
• Payroll evidence and documents showing the worker maintained status
• Worksite, client and itinerary records when relevant
• For L-1 filings, evidence of the organizational relationship and qualifying employment
• Material addressing earlier Requests for Evidence, site-visit issues, amended petitions or discrepancies

Officers could revisit previously accepted issues and examine the employer, duties, worksite, wage and continued eligibility. An earlier approval would not, by itself, establish that the requirements remain satisfied in a later filing.

The existing rule remains in place during the comment period

Pending and newly filed extensions continue under the present framework unless DHS issues a final rule. The proposal would not automatically reopen past cases or invalidate approvals already granted.

A separate DHS final rule issued at the same time ends automatic Employment Authorization Document extensions for certain timely renewal applicants. That is a distinct measure, not part of the proposed change to extension-petition review.

The proposal sets no new filing fee, form edition, transition grace period or immediate filing requirement. Employers and workers can submit comments during the 30-day period after the scheduled October 14 publication.