If the rule is finalized, USCIS officers could still consider an earlier approval but would no longer begin from a position of deference to it.
On October 14, 2026, the U.S. Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), published a proposed rule (91 FR 65119; DHS Docket No. USCIS-2026-0529) that would remove 8 CFR 214.1(c)(5). That regulation currently requires USCIS to defer to its prior eligibility determination when adjudicating a Form I-129 petition involving the same parties and the same underlying facts, unless there is a material error, a material change or new material information that adversely affects eligibility. Comments are due November 13, 2026, providing a 30-day public comment period for interested parties to submit feedback on the proposed rule. Comments must reference DHS Docket No. USCIS-2026-0529 and be submitted through regulations.gov by November 13, 2026.
Historical Background
USCIS first instructed officers to defer to prior approvals in a 2004 memorandum, citing consistency and efficiency. USCIS rescinded that guidance in 2017, reinstated it in the USCIS Policy Manual in 2021 and DHS codified it in December 2024 in the H-1B Modernization Final Rule. The current proposal would reverse that codification.
Key Change
If the rule is finalized, USCIS officers could still consider an earlier approval but would no longer begin from a position of deference to it. USCIS would also revise its current guidance requiring officers to explain, and obtain supervisory approval for, a decision not to defer. The change would impact every Form I-129 classification, including H-1B, L-1, O-1, TN, E and P petitions. It would most directly affect extensions with the same employer and could also affect certain amendment petitions.
The current regulation remains in effect unless and until a final rule is published and takes effect.
DHS’s Rationale
DHS argues that deference effectively shifts the burden of proof from the petitioner to the officer, discourages officers from requesting evidence and allows erroneous or fraudulent approvals to be carried forward. DHS estimates that deference applies to about 208,429 petitions a year and projects roughly 6,044 additional Requests for Evidence (RFEs) annually. DHS released the proposal the same day as a final rule confirming the end of automatic extensions for most employment authorization documents (EADs).
Impact on Employers and Foreign National Employees
If finalized, the rule is expected to have the following consequences:
Independent Review of Every Extension Petition
USCIS would make a new eligibility determination each time an extension petition is filed, without presuming that its prior approval was correct. Officers could therefore reconsider issues previously approved, including whether a position qualifies as a specialty occupation, a manager meets the L-1A requirements or a worker continues to satisfy the O-1 criteria.
More RFEs and Longer Processing
Petitions receiving an RFE took a median of 64 more days to decide, making adjudication times less predictable and workforce planning more difficult.
Work Authorization Continuity Risk
When an extension petition for the same employer is timely filed, the worker may generally continue working for up to 240 days after the authorized stay expires while the petition is pending. Longer processing times increase the likelihood that a petition filed under regular processing will remain pending beyond the 240-day period, requiring the worker to stop working until USCIS approves the petition. For families, delays are compounded by the end of automatic EAD extensions for dependents such as many H-4 spouses.
Greater Importance of Initial Filings
An initial approval would no longer serve as an anchor for later extensions. Job descriptions, wage levels, worksite information, organizational charts and qualifications presented in a new petition should be accurate and sustainable over the life of the worker's employment because inconsistencies between filings would be more likely to be questioned.
Recommended Employer Action Items
To reduce risk, employers should work with immigration counsel to:
- Prepare extensions as full filings that document eligibility anew, rather than relying primarily on the prior approval notice and a short employer letter.
- Identify petitions that will need extensions in the coming year and begin preparation well in advance, allowing time for a possible RFE.
- Consider requesting premium processing with the extension petition or early enough to obtain a decision before the 240-day automatic extension of work authorization expires.
- Compare each filing against prior petitions, Labor Condition Applications and visa applications, and address any changes in duties, worksite, compensation or corporate structure up front.
- Draft initial petitions with the full life of the case in mind, and retain prior petitions, supporting evidence, RFE responses and approval notices for use in later filings.
- Consider submitting a comment. Comments must reference DHS Docket No. USCIS-2026-0529 and be submitted through regulations.gov by November 13, 2026. Comments submitted by email, mail or hand delivery will not be considered, and submitted comments, including personal information, will be made public.
Next Steps
We are closely monitoring this rulemaking. Employers should begin reviewing upcoming extensions and filing practices now and may want to consider budgeting for higher cost of extension filings, including possible RFE responses and premium processing fees.
For More Information
If you have any questions about this Alert, please contact Ted J. Chiappari, Guilherme Massetti, Benjamin McDermott, any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]
