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DHS wants USCIS to stop deferring to earlier approvals.
On October 14, 2026, DHS published a proposed rule that would end deference to prior approvals in work visa cases. Deference is the rule that tells a USCIS officer to follow an earlier approval when an employer asks to extend a worker’s stay on the same facts. It is a proposal. The current rule still applies, and comments are open until November 13, 2026.
The proposal reaches every petition filed on Form I-129, so it covers H-1B, L-1, O-1, E and TN workers alike. If it becomes final, USCIS officers would review each extension without that starting point.
Deference to prior approvals, as USCIS applies it today.
Today, deference to prior approvals means the officer starts from the earlier finding of eligibility whenever the employer, the worker and the facts are the same.
The current regulation says USCIS "gives deference to its prior determination" of eligibility on a Form I-129 involving "the same parties and the same underlying facts". It lists three exceptions:
- A material error in the earlier approval.
- A material change in the circumstances or in the eligibility requirements.
- New, material information that counts against the case.
Deference duties in the USCIS Policy Manual.
The USCIS Policy Manual adds duties for an officer who declines to defer. The officer must name the earlier approval and the reason in the request for evidence (RFE), the notice of intent to deny or the denial. The employer then gets a chance to respond. A final decision that departs from an approval also needs a supervisor’s sign-off, and signs of fraud or misrepresentation end deference.
Deference to prior approvals since 2004.
Deference began as a USCIS memo in April 2004. USCIS rescinded it in October 2017, saying it shifted the burden of proof away from the employer, and restored it in the Policy Manual in April 2021. DHS then codified it in the H-1B modernization rule of December 18, 2024, which took effect on January 17, 2025.
The DHS deference proposal of October 14, 2026.
DHS and USCIS published the proposal in the Federal Register under the title Removing Deference to Prior USCIS Determinations of Eligibility. As a proposed rule it is open to public comment, and DHS can revise it before any final version. It would do three things:
- Delete the deference paragraph. The regulations would no longer tell officers to defer to an earlier approval, and USCIS would then rewrite its Policy Manual guidance to match.
- Keep the prior approval in view. DHS writes that officers could still consider an earlier approval "where relevant". What goes is the requirement that they "begin from a position of deference" to it.
- Reach every Form I-129 request. The change applies to all benefit requests filed on the form, whatever the category.
DHS considered a softer version, a rule saying USCIS "may give deference in its discretion", and rejected it. It writes that the softer wording would leave officers and employers unsure when to apply it.
Petitions the deference proposal would reach.
The deference proposal would reach each category that uses Form I-129 to extend a worker’s stay:
| Category | Who it covers |
|---|---|
| H-1B and H-1B1 | Specialty occupation workers; the H-1B1 is for nationals of Chile and Singapore |
| L-1A and L-1B | Managers, executives and specialized-knowledge staff transferred within one company |
| O-1A, O-1B and O-2 | People with extraordinary ability or achievement, and their essential support staff |
| E-1, E-2 and E-3 | Treaty traders, treaty investors and their employees; the E-3 is for Australian specialty workers |
| TN | Canadian and Mexican professionals under the USMCA |
| H-2A, H-2B and H-3 | Seasonal farm and non-farm workers, and trainees |
| P, Q-1 and R-1 | Athletes and entertainers, cultural exchange visitors and religious workers |
Deference applies today mainly to two kinds of filing with the same employer. One continues the same job without change; the other asks for a change in a job USCIS approved before. DHS counts those two filing types as the petitions the rule affects, and notes that some amendments can receive deference too.
Some petitions were never covered. A petition from a new employer involves different parties, so the officer already reviews it on its own evidence. The Policy Manual also says that USCIS considers, but does not defer to, eligibility decisions by the State Department or US Customs and Border Protection. An E-2 visa issued at a consulate and a TN admission at the border are examples. The proposal does not reach those decisions.
DHS’s reasons for ending deference.
DHS argues that deference sits badly with the law on proof and weakens the review of each case:
- The burden of proof. The law places the burden of proving eligibility on the petitioner in every case. DHS writes that deference "effectively" shifts that burden to the officer, who has to justify departing from the earlier approval.
- The officer’s review. DHS writes that some officers "may simply grant the benefit absent glaring errors" instead of asking for more evidence. It points to the years without deference, when the RFE rate on these petitions rose faster than on other petitions.
- Fraud and repeated errors. DHS writes that an approval can serve "as an anchor" for later filings, and that a mistake in an earlier approval can carry into every extension. It cites USCIS site visits on H-1B and L-1A extensions that found more fraud or noncompliance in the years with deference.
DHS acknowledges that employers and workers have planned around the current rule. It calls that reliance limited, because the rule never guaranteed an approval, and it concedes that factors other than deference may explain part of its data.
DHS’s numbers on extensions and requests for evidence.
DHS projects more requests for evidence and no change in denials. It compared petitions decided with deference, October 2013 to October 2017, against petitions decided without it, October 2017 to April 2021. Petitions that never received deference served as the control group. The figures in the proposal:
| Figure | DHS’s number |
|---|---|
| Petitions affected | 208,429 a year on average, fiscal years 2022 to 2025, or 30 percent of all Form I-129 petitions |
| RFE rate, deference | 18.9 percent of affected petitions, 2013 to 2017 |
| RFE rate, no deference | 23.4 percent, 2017 to 2021 |
| Rise tied to deference | 2.9 percentage points, after subtracting the 1.6-point rise on other petitions |
| Added RFEs a year | About 6,044 |
| Time to a decision | About 76 days with an RFE and 12 days without, the average of yearly medians for fiscal years 2022 to 2025 |
| Denial rates | No statistical difference between the years with and without deference |
| H-1B site visits | Fraud or noncompliance at 22.39 percent of sites visited, 2022 to 2025, against 16.77 percent, 2018 to 2020 |
| L-1A site visits | 24.46 percent against 18.37 percent over the same years |
The site-visit figures cover administrative and targeted visits on H-1B and L-1A extension petitions only. DHS writes that other changes may have contributed to both the RFE rise and the site-visit results.
Rules the deference proposal leaves in place.
The proposal does not change who qualifies for any visa. DHS states that removing deference "does not substantively change eligibility" for the benefit. What stays as it is:
- The requirements of each category. The evidence an extension needs is the same under either rule.
- Work while an extension is pending. The employer has to file the extension of stay before the worker’s authorized stay ends. The worker may then keep working for that employer for up to 240 days after the I-94 date while USCIS decides. DHS cites that rule in the proposal.
- The paperwork. The proposal adds no reporting requirement and uses the existing Form I-129.
Deference proposal timeline: comments close November 13.
Nothing changes for employers or workers while the proposal is open for comment. The dates known so far:
| Date | What happens |
|---|---|
| October 13, 2026 | The proposal goes on public inspection at the Federal Register. |
| October 14, 2026 | Publication in the Federal Register starts 30 days for public comment. |
| November 13, 2026 | Comments close at midnight Eastern time. |
| After that | DHS reviews the comments and may publish a final rule with its own effective date. No deadline governs this step. |
The proposal does not say how a petition still pending on a future effective date would be treated. A final deference rule could also face a court challenge, so check the live status of the rulemaking before relying on these dates.
The separate proposal to remove the 60-day grace period after a job ends covers E, H-1B, L-1, O-1 and TN workers, who all fall under this proposal too. It runs on its own track, with comments open until November 10, 2026.
Steps for employers and workers before the next extension.
Employers can prepare each extension as a complete petition now, since the evidence it needs is the same under either rule. The steps immigration practitioners recommend:
- File the full record, not the approval notice. Include current evidence for every requirement of the category, as a first petition would.
- Check the new petition against the earlier ones. Compare the duties, worksite, pay and company structure with the prior petitions and visa applications, and explain any change in the filing.
- Leave time for a request for evidence. An H-1B petition can be filed up to six months before the start date it asks for. Filing early leaves room to answer an RFE before the current stay ends.
- Workers: keep your own records. Keep I-94 records, pay statements and copies of earlier approvals, which an RFE may ask for.
- Comment if the change affects the business. Employers and workers who want DHS to weigh their experience can file a public comment before the period closes.
Common questions
Not today. Pending and new petitions are decided under the current rule until a final rule takes effect. The proposal does not say how a petition still pending on that date would be treated, so that answer would come later.
No. The current rule covers a Form I-129 involving the same parties and the same underlying facts. A petition from a new employer has a different petitioner, so the officer reviews it on its own evidence today. The proposal changes nothing for a change-of-employer petition, which never received deference.
No. The proposal changes how USCIS reviews Form I-129 filings. Consular officers decide visa applications on their own, and the USCIS Policy Manual already says that USCIS considers, but does not defer to, eligibility decisions made by the State Department or by CBP at the border.
When an employer files an H-1B extension of stay before the worker’s authorized stay ends, the worker may keep working for that employer for up to 240 days after the I-94 date while USCIS decides. The same rule covers L-1, O-1, E, P, R and TN workers, and the deference proposal leaves it unchanged.
No. Premium processing buys a faster decision, 15 business days for most Form I-129 categories, under the same standard of review. If USCIS issues a request for evidence, the 15-day clock stops, and a new one starts when USCIS receives the response, so an RFE still adds time to the case.
Through regulations.gov under DHS Docket No. USCIS-2026-0529, before midnight Eastern time on November 13, 2026. Comments sent by email, mail or courier are not considered. Every comment is posted publicly, and DHS says the most useful ones name the part of the rule they address and bring data.
Sources
- Removing Deference to Prior USCIS Determinations of Eligibility, proposed rule (DHS Docket No. USCIS-2026-0529)Department of Homeland Security · October 14, 2026
Show all 8 sourcesShow fewer sources
- 8 CFR 214.1(c), extension of stay and deference to prior USCIS determinationsCornell Legal Information Institute
- USCIS Policy Manual, Volume 2, Part A, Chapter 4, Extension of Stay, Change of Status, and Extension of Petition ValidityU.S. Citizenship and Immigration Services
- Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, final ruleDepartment of Homeland Security · December 18, 2024
- 8 CFR 274a.12(b)(20), continued employment while an extension of stay is pendingCornell Legal Information Institute
- 8 CFR 106.4, Premium processing serviceCornell Legal Information Institute
- 8 CFR 214.2(h)(9)(i), H petition filing timingCornell Legal Information Institute
- Docket USCIS-2026-0529, Removing Deference to Prior USCIS Determinations of EligibilityRegulations.gov
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