Department of Homeland Security proposes ending deference to prior approvals when reviewing Form I-129 worker extension petitions
As of our last check on November 2, 2026, this is a proposal, not a requirement. Comments are due November 13, 2026.
We check the Federal Register daily for later actions. We check federal court opinions for rulings on published rules weekly, on Mondays. A ruling can take time to reach us, so not finding one here does not mean there is none.
In short
- What changed
- The Department of Homeland Security (DHS) proposes to remove the regulation that tells U.S. Citizenship and Immigration Services (USCIS) officers to defer to a prior approval when reviewing a Form I-129 petition to extend a foreign worker's employment or stay. Officers could still consider a prior approval, but would no longer start from deference to it.
- Who's affected
- Employers that file Form I-129 extension petitions for nonimmigrant workers (for example H-1B, L-1, O-1, E and TN workers), and those workers. DHS expects more requests for evidence and longer processing for some extensions.
- What to do
- This proposed rule creates no new duties for employers now. Employers that want to weigh in can comment through regulations.gov by November 13, 2026, and may want to plan for fuller, earlier extension filings in case the proposal becomes final.
What changed
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From the sourceSUMMARY
proposes to remove 8 CFR 214.1(c)(5), which generally provides that USCIS gives deference to a prior approval involving the same facts when adjudicating a request to extend a petition for an alien's employment or stay.
DHS proposes to remove 8 Code of Federal Regulations (CFR) 214.1(c)(5), which generally provides that USCIS gives deference to a prior approval involving the same facts when deciding a request to extend a petition for a worker's employment or stay.
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From the sourceSupplementary Information, II.A Purpose and Summary of the Proposed Regulatory Action
Under the current regulation, USCIS must generally defer to the prior determination of eligibility for the nonimmigrant worker classification unless there was a material error, a material change, or new material information.
Under the current regulation, USCIS must generally defer to the earlier eligibility decision unless there was a material error, a material change, or new material information.
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From the sourceSupplementary Information, III. Discussion of Proposed Rule
This proposal would not prohibit USCIS officers from considering a prior approval where relevant. Rather, it would remove the requirement that officers begin from a position of deference to the prior approval.
The proposal would not bar officers from considering a prior approval where relevant. It would remove the requirement that officers start from a position of deference to it.
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From the sourceSupplementary Information, III. Discussion of Proposed Rule
This proposed change would apply to all benefit requests filed using Form I-129, Petition for a Nonimmigrant Worker.
The proposed change would apply to all benefit requests filed on Form I-129.
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From the sourceSupplementary Information, III.E Reliance Interests and Alternatives Considered
Conversely, removing deference does not substantively change eligibility for the requested immigration benefit.
DHS says removing deference would not change the eligibility rules for the immigration benefit itself.
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From the sourceFootnote 11
If this proposed rule becomes final, USCIS would make corresponding changes to the current policy guidance on deference.
If the rule becomes final, USCIS would also change its current policy guidance on deference.
Who is affected
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From the sourceSupplementary Information, II.A Purpose and Summary of the Proposed Regulatory Action
This requirement most often applies when a petitioning employer seeks to extend a petition for an alien's employment or authorized stay in the United States under the same previously approved nonimmigrant worker classification.
The current deference rule most often applies when an employer seeks to extend a worker's employment or stay in the same previously approved classification.
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From the sourceFootnote 5
The petitioner must file Form I-129 to request an extension 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-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1, or TN nonimmigrant workers.
Form I-129 is used to request extensions of stay for many worker classifications, including E-1, E-2, E-3, H-1B, H-2A, H-2B, L-1, O-1, P, Q-1, R-1 and TN workers.
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From the sourceIV.A Quantified Costs
We apply this percentage to the estimated affected population from Table 2 (208,429)
Also: IV.B Initial Regulatory Flexibility Analysis
DHS identified 22,748 unique employers affected by this rule.
DHS estimates about 208,429 petitions a year would be affected and identified 22,748 unique employers affected by the proposal.
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From the sourceIV.A Unquantified Costs
increase stress for workers who may have to wait significantly longer for clarity on their ability to continue employment beyond that already authorized.
Workers whose extensions take longer could face more uncertainty about continuing their employment.
What it means in practice
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From the sourceIV.A Quantified Costs
Based on the simple DID estimate, the removal of 8 CFR 214.1(c)(5) and the deference policy may increase the RFE rate by 2.9 percentage points.
Also: IV.A Quantified Costs
to estimate that there would be approximately 6,044 additional RFEs annually after removing the deference policy.
DHS expects requests for evidence (RFEs) to rise by about 2.9 percentage points, or roughly 6,044 more RFEs a year.
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From the sourceIV.A Quantified Costs
DHS estimates the annual increase in cost would be approximately $133,987 to petitioners due to the expected increase in RFEs. On average, the cost of an additional RFE would be $22.17.
DHS estimates the added cost to petitioners at about $133,987 a year, or about $22 per added RFE.
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From the sourceIV.A Unquantified Costs
the difference in processing time between petitions with and without an RFE is 64 days
Also: IV.A Unquantified Costs
These longer timelines can delay the final decision, making it difficult for workers and employers to plan project timelines, staffing levels, and work assignments.
Petitions that get an RFE took 64 days longer to process on average, which DHS says can make it harder to plan project timelines, staffing and work assignments.
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From the sourceIV.A Unquantified Costs
the beneficiary may remain in the United States in an authorized period of stay while awaiting the adjudication of the petition filed on their behalf and may be eligible to continue to work.
When an extension is timely filed and still pending when the worker's status expires, the worker may remain in an authorized period of stay and may be eligible to keep working.
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From the sourceIV.B Initial Regulatory Flexibility Analysis, item 4
As a result, certain petitioners would need to review RFE notices more frequently, collect and organize additional supporting documentation, and maintain more robust records of prior approvals and ongoing eligibility.
Also: IV.A Unquantified Costs
However, petitioners may take additional steps to ensure that submissions are complete and well-organized at the outset, instead of merely relying on a prior approval.
DHS expects some petitioners to collect more supporting documents and keep fuller records of prior approvals and ongoing eligibility, and to put more staff or attorney time into extension filings.
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From the sourceIV.A Quantified Costs
DHS applied the same DID approach to denial rates and found no corresponding change.
DHS's analysis found no change in denial rates tied to deference.
What to do
Required
This is a proposed rule, so it creates no requirement for employers. DHS also states it would not impose new reporting or recordkeeping requirements; the change would affect how USCIS reviews Form I-129 extension petitions.
Worth considering
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Our suggestionDATES
Written comments on the notice of proposed rulemaking (NPRM) must be submitted on or before November 13, 2026.
Also: ADDRESSES
You may submit comments on the entirety of this proposed rulemaking package, identified by DHS Docket No. USCIS-2026-0529 through the Federal eRulemaking Portal: https://www.regulations.gov.
Consider submitting comments through regulations.gov under Docket No. USCIS-2026-0529 if the proposal would affect your extension filings. DHS says comments sent by email, mail or hand delivery will not be accepted.
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Our suggestionIV.A Unquantified Costs
However, petitioners may take additional steps to ensure that submissions are complete and well-organized at the outset, instead of merely relying on a prior approval.
Consider preparing upcoming Form I-129 extension petitions so they fully show continued eligibility on their own, rather than relying on the earlier approval.
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Our suggestionIV.A Unquantified Costs
the difference in processing time between petitions with and without an RFE is 64 days
Also: IV.A Unquantified Costs
the beneficiary may remain in the United States in an authorized period of stay while awaiting the adjudication of the petition filed on their behalf and may be eligible to continue to work.
Consider building more lead time into extension planning, since petitions that receive an RFE took 64 days longer on average, and timely filing affects whether a worker may keep working while a petition is pending.
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Our suggestionIV.B Initial Regulatory Flexibility Analysis, item 4
As a result, certain petitioners would need to review RFE notices more frequently, collect and organize additional supporting documentation, and maintain more robust records of prior approvals and ongoing eligibility.
Consider keeping organized records of prior approvals and current evidence of each worker's eligibility so RFE responses can be prepared quickly.
Open questions
The source leaves these open. We'll update this record if a later document answers them.
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Would a final rule apply to extension petitions that are already pending when it takes effect?
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Would the change affect extension requests for workers' dependents filed on Form I-539?
Related changes
History
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Removing Deference to Prior USCIS Determinations of Eligibility Source (opens in a new tab)