On October 14, 2026, DHS published a proposed rule that ends USCIS deference to its own prior approvals in Form I-129 petitions. If finalized, each extension request will be reviewed from scratch, without the presumption that something already approved under the same facts remains valid. Public comments are open until November 13, 2026.
What happened?
The proposal was published in the Federal Register on October 14, 2026 (91 FR 65119, document 2026-20941). DHS, through USCIS, is proposing to remove the provision at 8 CFR 214.1(c)(5) from the regulation. This is a proposed rule: it is not yet in effect and will only change USCIS practice if it is published in final form.
What does the regulation say today?
The provision DHS wants to remove states that USCIS gives deference to its prior determination of eligibility. In practice, when a new I-129 petition involves the same parties and the same facts as a prior approval, the officer starts from that approval unless they find a material error, a material change, or new information affecting eligibility, according to the published text.
The background is also included in the document: the policy originated in 2004, was rescinded in October 2017, returned to the USCIS Policy Manual in April 2021, and was incorporated into the regulation in December 2024 (89 FR 103054).
What changes in practice?
With the removal, the officer no longer starts from a presumption of deference. DHS itself explains that the officer may still consider a prior approval when relevant, but there is no longer a rule that makes it the starting point, according to the proposal.
DHS justifies the change in three ways. The first is the burden of proof: the agency states that the law places the responsibility of proving eligibility on the person requesting the benefit, citing INA section 291. The second is the officer's workload: DHS says deference may discourage requests for additional evidence (RFE) and cites a 2.9 percentage point increase in the RFE rate after the 2017 rescission. The third is program integrity: in H-1B extension verification site visits, the problem rate was 22.39% (fiscal years 2022 to 2025), compared to 16.77% (2018 to 2020); for L-1A, 24.46% compared to 18.37%. DHS acknowledges that other factors may have contributed.
The agency also evaluated an alternative—rewriting the rule to say that USCIS "may" grant deference at its discretion—and rejected the idea, considering it would create confusion.
Who is affected?
The proposal applies to petitions filed on Form I-129, the nonimmigrant worker petition. The most common scenario is an extension of stay or petition validity for the same employer and the same classification, as occurs in H-1B and L-1 petitions.
According to DHS estimates, about 208,429 petitions per year would be affected (average for fiscal years 2022 to 2025), equivalent to about 30% of I-129 filings. The agency calculates approximately 6,044 additional RFEs per year, with an estimated cost of $133,987 per year for petitioners, roughly $22.17 per additional RFE. DHS states it found no corresponding change in the denial rate.
For those following this topic, it's worth remembering that an RFE is a formal USCIS request for additional documents. The deadline and format for responding are covered in our guide on USCIS RFEs. Another recent DHS proposal on work petitions, regarding H-1B fees, is covered in H-1B Cap: What DHS Proposed.
What's the next date?
The public comment period ends at 11:59 PM (Eastern Time) on November 13, 2026. The official process works as follows, according to the Federal Register:
- Comments are submitted through Regulations.gov, under docket USCIS-2026-0529.
- Emails or letters sent to DHS or USCIS staff are not considered comments. Hand-delivered comments, digital media, and mail are also not accepted.
- For alternative instructions, the document provides the phone number (240) 721-3000.
- After the deadline, DHS reviews the comments and decides whether to publish a final rule.
Other procedural changes published on the same date, such as the end of automatic EAD extension, are covered in DHS Ends Automatic EAD Extension for I-765 Renewals. You can follow other official updates on the Prime blog.
Sources
- Federal Register: Removing Deference to Prior USCIS Determinations of Eligibility (91 FR 65119, 10/14/2026)
- Regulations.gov: docket USCIS-2026-0529
Educational information, not legal advice. Prime Immigration Office is a paralegal service — document preparation only. For legal advice, consult a licensed Texas attorney or DOJ-accredited representative.