The Department of Homeland Security has proposed removing the rule that tells USCIS to defer to its own earlier approval when a worker's employer files for an extension on the same facts. The proposed rule, "Removing Deference to Prior USCIS Determinations of Eligibility," went on public inspection on October 13 and is scheduled for publication in the Federal Register on October 14, 2026 (document 2026-20941). It is not in effect. Comments are open for 30 days after publication, which puts the deadline at November 13, 2026.

The change is one line of regulation, but it decides how an officer starts reading an extension petition: from the assumption that the last approval was right, or from scratch.

Key Points

  • What: DHS would delete 8 CFR 214.1(c)(5), the provision that requires USCIS to give deference to a prior approval involving "the same parties and the same underlying facts."
  • Who it covers: Every petition filed on Form I-129. DHS lists extensions of stay for E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P, Q-1, R-1 and TN workers.
  • What it means in practice: An extension with nothing new in it could still get a Request for Evidence (RFE) or a denial on questions USCIS already answered in your favor.
  • Status: Proposed only. The deference rule still applies to petitions today.
  • Comment deadline: 30 days after the October 14 publication, on regulations.gov under docket USCIS-2026-0529.

What Deference Means Today

Under the current rule, when USCIS reviews an I-129 extension for the same employer, the same worker and the same job, it gives deference to its earlier finding of eligibility. The officer can depart from it only if there was a material error in the earlier approval, a material change in the facts, or new material information that hurts eligibility.

DHS's proposal would remove that starting point. The rule says it "would not prohibit USCIS officers from considering a prior approval where relevant," but it "would remove the requirement that officers begin from a position of deference to the prior approval." Officers could still reach the same result as before. They would no longer have to.

This Has Happened Before

Deference has been switched on and off three times:

  • 2004: USCIS first instructed officers to defer to prior approvals, through internal guidance.
  • October 2017: During the first Trump administration, USCIS rescinded that guidance (memo PM-602-0151).
  • April 2021: USCIS restored deference and put it in the Policy Manual.
  • December 2024: The H-1B modernization rule (89 FR 103054) wrote deference into the regulations, which is what made it harder to reverse with a memo.

This proposal undoes the 2024 codification. DHS says it has reconsidered its view that codifying deference was appropriate. If finalized, USCIS would also change its Policy Manual guidance to match.

Why DHS Says It Is Doing This

DHS gives three reasons. The petitioner carries the burden of proving eligibility in every filing, and deference shifts that burden in practice. Independent review avoids repeating earlier mistakes. And DHS points to fraud and noncompliance data from its site-visit program: 22.39% for H-1B in fiscal years 2022 to 2025, up from 16.77% in 2018 to 2020, and 24.46% for L-1A, up from 18.37%.

DHS also considered changing the rule to say USCIS "may" defer at its discretion, and rejected that option.

What It Could Cost You

DHS estimates the rule affects about 208,429 petitions a year. Using the 2017 to 2021 period as a natural experiment, it projects a 2.9 percentage point increase in the RFE rate for these extensions, or roughly 6,044 more RFEs a year.

DHS puts the direct cost at about $22 per RFE, a figure that only covers the time to respond. The cost that matters more is time: DHS acknowledges that a petition that gets an RFE takes about 64 days longer to decide, and that the rule adds uncertainty about continued employment. For a worker whose status depends on an extension, that is the real exposure. An RFE on an extension that used to be routine can push a decision past travel plans, visa stamping or a green card timeline.

What Is Still Unclear

  • Amendments and employer changes: The rule says it applies to all I-129 filings, but its analysis focuses on extensions with the same employer. It does not address change-of-employer petitions specifically, which never received deference in the first place since the parties differ.
  • Pending petitions: The proposal does not say whether a final rule would apply to extensions already pending on its effective date.
  • Dependents: H-4, L-2 and other dependents file on Form I-539, which the proposal does not address. Their extensions usually follow the principal's petition anyway.

What to Do Now

Nothing changes for an extension filed today. If your extension is coming up in the next several months, ask your employer or attorney to file a complete petition rather than relying on the earlier approval to carry it, since a final rule could arrive while your case is pending. Keep evidence that your job duties, worksite and pay match what USCIS approved before. Anyone can comment on the proposal at regulations.gov, docket USCIS-2026-0529, until November 13, 2026.