The United States Department of Homeland Security (DHS) proposes to remove the rule that requires U.S. Citizenship and Immigration Services (USCIS) to give deference to a prior approval when adjudicating an extension request on Form I-129, involving the same parties and the same underlying facts. The proposal was published in the Federal Register on October 14, 2026, and comments end on November 13, 2026. The proposal is not yet the final rule, and the current rule remains in effect until a future final rule takes effect.
What deference is, in the current text
According to DHS, the current rule is at 8 CFR 214.1(c)(5). When adjudicating a Form I-129 involving the same parties and the same underlying facts, USCIS gives deference to its prior determination of eligibility, unless there was a material error, a material change, or new material information that adversely affects eligibility.
DHS notes that this requirement arises most often when an employer seeks to extend a petition, in the same classification already approved, together with a request to extend stay, on Form I-129, with evidence of continued eligibility. The burden of proof remains with the petitioner, under section 291 of the Immigration and Nationality Act (INA), 8 U.S.C. 1361.
What the proposal would change, in exact terms
According to DHS, the proposal removes 8 CFR 214.1(c)(5) and the deference policy. The proposed regulatory text amends section 214.1 by removing and reserving paragraph (c)(5), which would read as reserved, and the change would apply to all benefit requests filed on Form I-129, Petition for a Nonimmigrant Worker.
The proposal would not prohibit officers from considering a prior approval, where relevant. What it removes is the requirement to begin the review from a position of deference. Officers would review each request on a case-by-case basis, with all relevant facts and evidence. DHS estimates about $133,987 per year in new costs for petitioners, because of the expected increase in Requests for Evidence (RFEs), the subject of the article on the USCIS RFE.
Who is within the scope of Form I-129
According to the official USCIS page, Form I-129 is used to petition, on behalf of a nonimmigrant worker, for temporary admission to the United States to perform services or labor, or to receive training, in classifications such as H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1, and also to request an extension of stay or a change of status to E-1, E-2, E-3, H-1B1 or TN, or to one of the listed classifications.
The text of the proposal states that the petitioner files Form I-129 to request an extension of stay for E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1 or TN workers, and, for dependents, requests may be filed on Form I-539. The official page notes that Form I-129 has an edition dated September 9, 2026, and the edition dated February 27, 2026 is accepted only before November 9, 2026, a separate alert from the deference proposal. The article on I-140 Premium Processing records that Premium Processing also covers Form I-129.
The history in four dates: 2004, 2017, 2021 and 2024
According to DHS, the codification of deference was recent, but USCIS has a history of implementing and rescinding deference from 2004. In April 2004, USCIS issued a memorandum on the significance of a prior approval for extension of petition validity, which recognized USCIS authority to question prior determinations and case-by-case adjudication, but established deference, with the same parties and the same facts, unless there was a material error, a substantial change in circumstances, or new material information.
In October 2017, USCIS rescinded the 2004 guidance, out of concern that it shifted the burden from the petitioner to USCIS and limited officers’ fact-finding authority. In April 2021, USCIS reinstated the policy and incorporated it into the Policy Manual. In December 2024, the policy was codified at 8 CFR 214.1(c)(5), by the final rule published on December 18, 2024.
Why DHS says it wants to remove the rule
According to DHS, removal would better align DHS rules and USCIS practice with section 291 of the INA, 8 U.S.C. 1361, which places the burden of proof on the petitioner, and the document cites Matter of Chawathe, under which that burden remains entirely with the applicant. When the current rule was promulgated, the agency stated that petitioners would continue to bear the burden of presenting all required evidence, but the practical effect, in the proposal’s assessment, is inconsistent with that statement.
This structure creates a default position that the prior approval was correct, and encourages consistency and efficiency, rather than full exploration of the facts and evidence. The document records that the Request for Evidence rate increased by 2.9 percent more than the comparison group rate, after the 2017 rescission, although the text itself recognizes that other changes may have contributed, in part, to that increase.
What the proposal does NOT change, in its own text
According to DHS, removal of deference does not, by itself, change eligibility for the requested benefit, and would not deprive employers of the ability to continue employing nonimmigrant workers, or workers of the ability to continue working and living in the United States, as long as they can establish continued eligibility and obtain the necessary approvals. The deference rule does not, by itself, guarantee approval of an extension, and there is no legitimate expectation that an erroneous or unsupported prior approval will continue to produce future approvals.
The proposal would not prevent an officer from considering a prior approval, where relevant. The articles on the November 2026 Visa Bulletin, on losing a green card through abandonment of residence, and on public school enrollment in the U.S. deal with other subjects, not with deference.
Comments, deadline and next steps in the process
According to the published text on October 14, 2026, written comments must be submitted by November 13, 2026, by midnight Eastern time at the end of that day, through the electronic Federal Docket Management System, for the package identified by DHS Docket No. USCIS-2026-0529, through the regulations.gov portal. Comments by another means, including emails or letters to DHS or USCIS officials, will not be considered comments on the proposal and may not receive a response, and DHS does not accept hand-delivered or couriered comments, or comments on digital media, and USCIS does not, at this time, accept mailed comments.
A comment must include the agency name, U.S. Citizenship and Immigration Services, and DHS Docket No. USCIS-2026-0529, and all submissions will be posted, without change, on the portal, including any personal information provided. DHS considered and rejected the alternative of stating that USCIS may give deference, in its discretion, because, in DHS’s assessment, it would create confusion and uncertainty. Until a final rule is published, with its own effective date, the proposal remains only a proposal, and the article on change of address and Form AR-11 shows, in another context, how an official deadline can differ from a proposal in public consultation.
Frequently asked questions
Has the deference rule already changed on November 2, 2026?
No. The document dated October 14, 2026 is a notice of proposed rulemaking, and not a final rule, and the current rule remains in effect until a future final rule takes effect, with its own date.
By when may comments be submitted?
According to the published text dated October 14, 2026, written comments must be submitted by November 13, 2026, by midnight Eastern time at the end of that day, through the electronic Federal Docket Management System.
What does the proposal change in practice?
The proposal removes the requirement to begin the review from deference, and officers would review each request on a case-by-case basis, with all relevant facts and evidence, to determine whether the petitioner met the burden of proof.
Would a prior approval carry no weight at all, if the proposal becomes a final rule?
No. The proposal would not prohibit officers from considering a prior approval, where relevant, and what changes is the removal of the default position of deference at the start of the review.
Does the proposal create a new eligibility rule for Form I-129?
No. DHS records that removal does not, by itself, change eligibility for the requested benefit, and the change concerns the form of review of the extension.
Official sources consulted
- Federal Register, Removing Deference to Prior USCIS Determinations of Eligibility, 91 FR 65119, October 14, 2026: https://www.govinfo.gov/content/pkg/FR-2026-10-14/html/2026-20941.htm
- Federal Register, Removing Deference to Prior USCIS Determinations of Eligibility, public inspection document, DHS Docket No. USCIS-2026-0529, RIN 1615-AD26: https://public-inspection.federalregister.gov/2026-20941.pdf
- U.S. Citizenship and Immigration Services, Form I-129, Petition for a Nonimmigrant Worker: https://www.uscis.gov/i-129
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