The Department of Homeland Security (DHS) has proposed removing the rule that tells U.S. Citizenship and Immigration Services (USCIS) to defer to its own earlier approval when an employer files to extend a worker’s status. The proposed rule, titled “Removing Deference to Prior USCIS Determinations of Eligibility,” was published on October 14, 2026 (91 Fed. Reg. 65,119), under docket number USCIS-2026-0529 (RIN 1615-AD26). Public comments are due Friday, November 13, 2026.

The change is one sentence long. DHS would delete 8 CFR 214.1(c)(5) and leave the paragraph “[Reserved].” But that one sentence affects every Form I-129 extension: H-1B, L-1, O-1, TN, E, and other nonimmigrant worker petitions. DHS estimates that about 208,429 petitions a year would lose the benefit of deference.

If the rule is finalized as proposed, an H-1B extension for the same employer, the same worker, and the same job would be reviewed as if USCIS had never approved it before. The officer could still look at the prior approval. The officer would just no longer be required to start there.

This post explains what deference is, what DHS’s own data shows, and what the change would mean for H-1B and other extensions.

What is deference to prior approvals?

Under current 8 CFR 214.1(c)(5), when USCIS reviews a Form I-129 involving the same parties and the same underlying facts as a petition it already approved, it gives deference to its earlier decision. The officer can depart from that decision only if there was:

• a material error in the prior approval,
• a material change in circumstances or eligibility requirements, or
• new material information that adversely affects eligibility.

When an officer decides not to defer, USCIS guidance requires the officer to acknowledge the prior approval, explain why deference does not apply, get supervisory approval, and give the petitioner a chance to respond. Those safeguards would disappear along with the regulation.

Deference does not guarantee approval. The petitioner still has to file a complete extension with evidence of eligibility and maintenance of status. What deference does is stop an officer from re-deciding questions that USCIS already answered, such as whether the same job is a specialty occupation, when nothing has changed.

How deference has changed since 2004

Year	What happened
2026	DHS proposes deleting 8 CFR 214.1(c)(5) (October 14)
2024	DHS codifies deference in the H-1B Modernization Final Rule (December 18; effective January 17, 2025)
2021	USCIS reinstates deference in the Policy Manual (April)
2017	USCIS rescinds the 2004 memo (October 23)
2004	USCIS memo first directs officers to defer to prior approvals (April 23)

Many of our readers remember the period from late 2017 to early 2021, when extensions for the same employer and the same job drew requests for evidence (RFEs) that re-litigated questions USCIS had already approved. Less than two years after codifying deference, DHS now proposes to undo it.

Why DHS wants to end deference, and what its data shows

DHS gives three reasons:

1. Burden of proof. INA section 291 puts the burden on the petitioner. DHS says deference shifts that burden to the officer, who must find an error or change before departing from a prior approval.
2. Officer fact-finding. DHS says deference discourages officers from issuing RFEs even when the petitioner has not proven eligibility.
3. Program integrity. DHS says deference lets a questionable first approval become an “anchor” for later filings.

The proposal’s own numbers tell a more limited story.

Denial rates did not change. In footnote 13 and the cost analysis, DHS states that denial rates did not statistically differ between periods with and without deference. Its difference-in-differences analysis found no change in denials at all. The only measurable effect DHS found was more RFEs.

More RFEs means longer waits. DHS estimates about 6,044 additional RFEs a year. Each RFE means more work for officers, and more work means longer processing times for everyone.

Who would be affected, and what it would mean in practice

The rule would apply to every benefit request filed on Form I-129. DHS says H-1B petitions make up more than 75% of all I-129 filings, so H-1B workers would feel it most. Indian professionals would be hit hardest: according to USCIS’s FY 2025 report to Congress, 77.6% of H-1B approvals for continuing employment were for workers born in India.

Small businesses are affected too. DHS found that 57% of the employers it could classify that filed H-1B extensions in FY 2025 were small entities, and that the median small entity filed just one petition.

Here is what that looks like on the ground:

• More RFEs on routine extensions. Questions USCIS already decided, such as specialty occupation or whether the beneficiary qualifies for the role, could be reopened every three years for the same job.
• Longer processing, and the 240-day clock. A timely filed extension lets an H-1B worker keep working for up to 240 days after the I-94 expires. Longer processing pushes more cases toward that limit.
• Travel and visa stamping. Workers often wait for an extension approval before traveling abroad for a new visa stamp. Longer waits mean postponed travel for family emergencies and events.

Nothing has changed yet. The current deference regulation stays in effect unless and until DHS publishes a final rule and it takes effect.

Commenting on the proposed rule

DHS is accepting public comments on the proposal through Friday, November 13, 2026. If you would like to submit a comment, you can do so on regulations.gov under docket USCIS-2026-0529: submit a comment on regulations.gov.

For more information, or for a detailed conversation regarding the DHS’s deference, please schedule a time to speak here

By: Adena Bowman

Adena Bowman is a Senior Associate Attorney at Reddy Neumann Brown PC with over 12 years of experience in U.S. immigration law. She helps clients ranging from small businesses to large multinational corporations bring workers to the U.S. and stay compliant with immigration regulations. She also guides individual clients through employment, investment, and family-based immigration matters. Clients rely on her for clear guidance, strategic planning, and personalized support in navigating complex immigration challenges.