On October 14, 2026, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register proposing to eliminate 8 CFR 214.1(c)(5). This provision currently instructs U.S. Citizenship and Immigration Services (USCIS) officers to grant deference to prior determinations of eligibility when adjudicating Form I-129 nonimmigrant petition extensions involving the same parties and underlying facts.
Under current regulations, USCIS generally defers to a previous approval unless there is a material error, a material change in circumstances or eligibility criteria, or new material information that adversely impacts eligibility.
The proposed rule seeks to repeal this provision across all Form I-129 nonimmigrant classifications, including H-1B, L-1, O-1, TN, and E classifications. The policy change would not bar adjudicators from reviewing prior approvals, but it removes the mandatory requirement to start review from a baseline position of deference.
DHS outlines three principal justifications for removing the deference rule:
- Reallocating the Statutory Burden of Proof: Section 291 of the Immigration and Nationality Act (INA), 8 U.S.C. 1361, assigns the burden of proving eligibility entirely to the petitioner. DHS asserts that the existing deference rule effectively shifts the burden onto adjudications officers to prove a material error or change before departing from a prior approval.
- Enhancing Fact-Finding Authority: DHS indicates that mandatory deference discourages officers from conducting comprehensive case-by-case evaluations and issuing Requests for Evidence (RFEs) when documentation is lacking.
- Strengthening System Integrity: DHS cites internal data indicating higher rates of non-compliance and fraud in H-1B and L-1A extension site visits during periods when deference policies were active compared to periods without deference.
The removal of deference will directly impact employer petitioners and nonimmigrant workers seeking extensions of stay or petition validity:
- Increased Request for Evidence (RFE) Rates: Based on historical data from previous periods where deference was rescinded (2017–2021), DHS estimates a 2.9 percentage point increase in RFEs for affected petition extensions. This is expected to generate approximately 6,044 additional RFEs annually across all nonimmigrant classifications.
- Extended Processing Timelines: Historical USCIS data reflects that Form I-129 petitions receiving an RFE take an average of 64 additional calendar days to process compared to petitions approved without an RFE. Longer processing timelines may impact employer staffing schedules, workforce planning, and business continuity.
- No Direct Impact on Denial Rates: DHS analysis indicates that overall petition denial rates did not statistically differ during periods without deference, suggesting that well-documented petitions overcome initial adjudicative queries.
The NPRM is open for public comment until November 13, 2026. Comments must be submitted electronically through the Federal eRulemaking Portal under Docket No. USCIS-2026-0529. Following the comment period, DHS will review feedback before drafting a Final Rule.
To prepare for the anticipated regulatory shift and mitigate potential delays, employers filing nonimmigrant extension requests should implement the following procedures:
- Treat Extensions as Initial Filings: Prepare extension petitions with complete, standalone evidentiary support establishing all statutory and regulatory eligibility requirements, rather than relying on prior approval notices.
- Update Corporate and Position Documentation: Ensure that job descriptions, organizational charts, wage levels, and duty specifications reflect current operations and fully explain any operational changes since the original filing.
- Adjust Renewal Filing Windows: File Form I-129 extension petitions as early as permitted (up to 180 days prior to status expiration) to account for longer processing times and potential RFEs.
- Audit Active Nonimmigrant Portfolios: Conduct internal compliance reviews of current H-1B, L-1, and TN employees to verify that work locations, compensation, and duties remain strictly aligned with approved petitions.
INLG continues to monitor the progress of this proposed rulemaking and will provide further updates as DHS releases subsequent regulatory notices.