DHS Proposes Ending Form I-129 Deference for Work Visa Extensions

The Department of Homeland Security proposed removing the requirement that U.S. Citizenship and Immigration Services officers defer to earlier approvals in certain work-status extensions. The proposal, published October 14, 2026, covers benefit requests filed on Form I-129, Petition for a Nonimmigrant Worker.

Employers and temporary workers still operate under the current regulation. DHS has not said whether it will finalize the proposal or when a final rule would take effect. Comments are due November 13, 2026.

Earlier approvals guide qualifying extensions under the current rule

Today, officers generally give weight to a previous eligibility decision when an employer seeks an extension for the same worker and the same underlying circumstances. The requirement applies when the parties and relevant facts remain the same.

There are exceptions. An officer may depart from the earlier decision if it contained a material error, circumstances have materially changed, or new adverse information affects eligibility.

DHS proposes removing 8 CFR 214.1(c)(5), the provision that sets out this practice. If adopted, officers could reassess an extension without being required to follow the earlier eligibility decision. They could still consider the prior approval.

The proposal’s publication date is not its start date. The existing regulation remains in effect unless DHS issues a final rule and that rule takes effect.

Five work-visa classifications fall within the proposal

The proposal applies to benefit requests submitted on the petition form. DHS identifies H-1B, L-1, O-1, TN and E classifications among those covered.

The proposal applies to all benefit requests filed using Form I-129. The employer files the petition; the temporary worker is the person seeking continued work status. H-1B petitions account for more than 75% of all filings on the form, DHS says.

More evidence requests are possible, but extensions do not automatically end work

DHS estimates the proposal could lead to about 6,044 additional requests for evidence each year. Officers could seek more documentation or take a fresh look at eligibility questions during an extension review.

The department says its concern is that the existing approach may have constrained officers’ fact-finding authority and affected how they assess the employer’s burden of proof. DHS’s proposed rule says codifying the policy “may have had the unintended effect of appearing to constrain USCIS officers' fact-finding authority, leading some USCIS officers to conduct a less than fulsome review, and thus undermining the agency's efforts to detect and deter fraud.”

DHS’s analysis found no statistically significant difference in denial rates between periods with and without the policy. The additional evidence requests are an estimate, not a prediction that every extension will require more documents or be denied.

A timely filed extension may generally allow a worker to keep working for up to 240 days after the I-94 expires while the application is pending, subject to applicable rules. A longer review could leave some cases closer to that limit. The proposed change does not itself alter that continued-work provision.

Comments go to the agency under its docket number

Employers, workers and other interested parties can submit comments through Regulations.gov by November 13, 2026. They should identify the proposal under DHS Docket No. USCIS-2026-0529.

The proposed rule appeared in the Federal Register on October 14, 2026. DHS will decide whether to issue a final rule after the comment process; until a final rule takes effect, the current regulation governs qualifying extensions.