A proposed rule published in the Federal Register on October 14, 2026 would repeal the regulation that directs USCIS to follow its own earlier approvals of Form I-129 extension petitions. DHS calls it Removing Deference to Prior USCIS Determinations of Eligibility (Docket No. USCIS-2026-0529). The provision at issue, 8 CFR 214.1(c)(5), asks officers to follow a prior approval of the same employer and worker unless something material was wrong or has changed. Public comments are due November 13, 2026. Nothing has changed yet. The current rule stays in force until a final rule is published and takes effect.
History of the USCIS Deference Policy (2004–2024)
Deference has gone back and forth for years. A 2004 memo directed officers to defer to prior approvals, and USCIS withdrew that guidance in 2017, as we explained in our 2017 post. USCIS restored it in 2021, which we covered in this post. In December 2024, DHS wrote it into the regulations at 8 CFR 214.1(c)(5) as part of the H-1B modernization rule. The new proposal would delete that paragraph.
Why DHS Wants to End Deference to Prior Approvals
DHS argues that the burden of proof belongs to the petitioner under the statute, and that deference in practice shifts it to the officer. The agency also says deference can discourage requests for evidence and allow earlier errors to carry forward. It estimates that about 208,429 Form I-129 petitions a year, around 30 percent of all I-129 filings, are eligible for deference, and projects roughly 6,044 additional requests for evidence each year if the rule is finalized. DHS also reports a 64-day difference in processing time between petitions with and without an RFE.
What Would and Would Not Change for I-129 Extensions
The eligibility requirements for each classification would not change. Under the proposal an officer could still consider an earlier approval, but it would carry no automatic weight. Same-employer extensions would feel the change most. The proposed regulatory text only removes paragraph (c)(5). It contains no transition provision, so the notice does not say how petitions pending on a future effective date would be handled. DHS also looked at keeping deference as a discretionary option and chose not to propose it, saying it would create confusion.
How Employers Can Prepare for H-1B and L-1 Extensions
Employers with extensions coming due may want to treat each one as a complete filing instead of relying on the earlier approval notice. That means checking that job duties, worksite, reporting lines, and pay still match what was filed before, and gathering supporting evidence early. A longer RFE cycle can also matter for work authorization. DHS acknowledges in the proposal that a beneficiary of a timely filed extension may remain in an authorized period of stay and may be eligible to keep working while it is pending, citing 8 CFR 274a.12(b)(20). That rule generally allows up to 240 days after the authorized stay ends, so a petition that stays pending longer leaves less room. Each situation differs, so talk with counsel before the next filing.
Frequently Asked Questions
Is the deference policy gone now?
No. This is a proposed rule. The current regulation stays in effect until DHS publishes a final rule and it takes effect.
Which petitions could be affected?
The proposal is aimed at Form I-129 extension filings, including H-1B, L-1, O-1, TN, and other nonimmigrant worker classifications, when the parties and facts are the same as in a prior approval.
Would the eligibility standards change?
No. Each extension would be reviewed fresh against the same standards that apply today.
Can the public comment?
Yes. Comments are due November 13, 2026, and must be submitted on Regulations.gov under Docket No. USCIS-2026-0529. Emailed or mailed comments are not accepted.
Should employers wait to file extensions?
Waiting can carry its own risks, because stay and work authorization depend on filing on time. Employers should plan each extension with an attorney.
If you or your family members have questions about how this or other immigration and nationality matters may affect you, please do not hesitate to contact the immigration and nationality lawyers at NPZ & B Law Group. You can reach us by emailing info@visaserve.com or by visiting our website at www.visaserve.com for more information.