Immigration officials have proposed ending an immigration regulation that generally requires U.S. Citizenship and Immigration Services to defer to prior approvals when reviewing certain nonimmigrant worker petitions.
The Department of Homeland Security published the proposal on October 14, 2026, in the Federal Register.
The proposed rule would remove 8 CFR 214.1(c)(5), an immigration provision added in December 2024 that directs USCIS officers to give deference to an earlier eligibility determination when a new Form I-129 involves the same parties and underlying facts.
The proposal is not final and does not immediately change how USCIS handles immigration adjudication of extension petitions.
Table of Contents
What DHS is proposing
DHS wants to eliminate the regulatory requirement that USCIS generally rely on a prior approval when an employer files a later request involving the same petitioner, beneficiary and underlying circumstances.
The current rule includes exceptions when USCIS identifies a material error, a material change in circumstances or eligibility requirements, or new material information that negatively affects eligibility.
If the proposal becomes final, USCIS officers would no longer have to begin with a presumption that the earlier approval should receive deference.
USCIS could still consider a prior approval when it is relevant to the case.
The change would instead require officers to examine the facts and supporting evidence for each Form I-129 request and decide whether the petitioner has established continuing immigration eligibility.
Which immigration cases could be affected
The proposal would apply to immigration benefit requests filed through Form I-129, Petition for a Nonimmigrant Worker.
Form I-129 is used by employers seeking several categories of temporary employment-based immigration benefits.
The filing may request an extension of petition validity, an extension of a worker’s stay, or another action involving a nonimmigrant worker classification.
Common categories using Form I-129 include H-1B specialty occupation workers, L-1 intracompany transferees, O-1 individuals with extraordinary ability, TN professionals and several other temporary worker immigration classifications.
The proposal is broader than a rule limited to H-1B cases because the regulation covers Form I-129 requests generally.
However, DHS said H-1B petitions account for more than 75 percent of Form I-129 filings and used H-1B employer data as a proxy in its analysis of small-business effects.
Why DHS wants to remove deference
DHS said the proposal would better align the regulations with the statutory immigration framework that places the burden of proving eligibility on the petitioner or applicant.
Under that framework, an employer must establish that the worker continues to qualify for the requested classification each time an immigration benefit is sought.
DHS said the current deference rule may have shifted part of that burden to the USCIS officer.
Instead of requiring the employer to demonstrate continuing eligibility, the agency said officers may feel required to identify a material error or other exception before departing from the prior approval.
DHS also expressed concern that the policy could encourage officers to prioritize consistency with earlier decisions and faster processing over a complete review of current evidence.
The agency said removing deference could help officers identify erroneous approvals, inconsistencies, fraud indicators or other eligibility problems that might otherwise continue through later extension filings.
These are DHS’s stated reasons for the proposal and are not findings that particular employers or workers have violated immigration law.
Potential effects on employers and workers
If finalized, the rule could make some immigration extension filings more evidence-intensive.
Employers would need to continue documenting the facts supporting the worker’s eligibility rather than relying on the existence of an earlier approval.
Relevant evidence could include records concerning the offered position, job duties, worksite, organizational structure, employer operations, wages and the worker’s qualifications, depending on the classification and filing.
The exact evidence required would continue to depend on the applicable statute, regulation, form instructions and USCIS immigration adjudication standards.
DHS expects the number of Requests for Evidence, commonly called RFEs, to increase after deference is removed.
The agency estimated that the proposal could result in approximately 6,044 additional RFEs each year.
DHS estimated the annual cost to petitioners of responding to those additional RFEs at approximately $133,987.
The agency also said cases that receive RFEs could take longer to process.
Based on historical data cited in the proposal, petitions with an RFE took an average of 64 additional calendar days to process during the period reviewed by DHS.
Longer immigration processing could affect employer staffing plans, project assignments and workers’ uncertainty about continued employment authorization and status.
These effects are estimates in the proposed rule and could change after public comments or in a final rule.
How the proposal differs from current practice
The current regulatory framework does not make a prior approval an absolute guarantee of approval in a later case.
USCIS policy has stated that officers are not required to approve a later petition solely because an earlier petition was approved.
Under the current deference approach, however, officers generally give weight to the prior determination when the same parties and underlying facts are present.
If an officer decides that deference is inappropriate, current policy calls for acknowledging the earlier approval and explaining why the officer is not relying on it.
The proposed rule would remove that regulatory starting point.
It would not prevent employers from submitting prior approval notices or other historical records when those documents help establish the current petition’s immigration eligibility.
DHS data on potentially affected filings
DHS reviewed Form I-129 filings from fiscal years 2014 through 2025 for its immigration regulatory analysis.
The agency reported 7,206,852 total Form I-129 petitions during that period.
Approximately 2,168,394 petitions, or about 30 percent, were identified as potentially eligible for deference.
For its forward-looking estimate, DHS used the average number of potentially affected filings from fiscal years 2022 through 2025.
The proposal estimates that approximately 208,429 petitions could be affected annually by removal of the deference policy.
The number represents petitions that could fall within the population analyzed by DHS and does not mean every petition would receive an RFE or face a denial.
Public comment deadline and filing instructions
The public comment period closes on November 13, 2026.
Comments must be submitted through the Federal eRulemaking Portal and identify DHS Docket No. USCIS-2026-0529.
Comments sent by email or mail to DHS or USCIS officials will not be treated as comments on this proposed rule under the instructions published by the agency.
People submitting comments should explain which portion of the proposal they support or oppose and provide facts, data or legal authority supporting their position.
Commenters should also remember that submissions generally become publicly available and may include personal information supplied in the comment.
What employers and workers should do now
Because the proposal is not final, employers should continue following the current Form I-129 immigration filing requirements and applicable USCIS guidance.
Employers with upcoming extension filings should avoid assuming that a prior approval alone establishes continuing eligibility.
Preparing current evidence about the position, employer and worker can help address the existing burden of proof and reduce avoidable gaps in the filing record.
Employers and workers with cases affected by the proposal may wish to monitor the Federal Register docket for public comments, agency updates and any final rule.
Because immigration outcomes depend on the facts of each case, organizations should consider obtaining advice from a qualified immigration attorney before changing filing practices or responding to an RFE.
What happens next
DHS will review timely public comments before deciding whether to finalize, revise or withdraw the proposal.
A final rule could include changes from the October 14 proposal and would need to specify an effective date.
Until a final rule takes effect, the proposed removal of 8 CFR 214.1(c)(5) does not itself alter the existing immigration regulatory text.
Frequently Asked Questions
What is USCIS deference to prior approvals?
USCIS deference is the practice of generally relying on an earlier eligibility determination when a later Form I-129 request involves the same parties and underlying facts, unless a material error, material change or new material information is present.
Would the proposed rule immediately change immigration cases?
No. The October 14, 2026 publication is a proposed rule, not a final rule. The existing regulation remains in effect unless DHS later finalizes a change.
Which petitions could be affected?
The proposal would apply to benefit requests filed through Form I-129, including extension requests for several nonimmigrant worker classifications such as H-1B and L-1.
When is the public comment deadline?
Written comments must be submitted by November 13, 2026, through Regulations.gov using DHS Docket No. USCIS-2026-0529.
Fact-Checked: Fact-checked against the October 14, 2026 Federal Register proposed rule, the cited USCIS policy materials and the current regulatory framework identified by DHS.
Disclaimer: This article provides general information about a proposed immigration rule and is not legal advice.
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