DHS has proposed ending mandatory deference to prior USCIS approvals, a change that could bring greater scrutiny to extension petitions filed by employers for H-1B and other nonimmigrant workers.
The Department of Homeland Security published the proposed rule on October 14, 2026. It would remove a regulation directing U.S. Citizenship and Immigration Services officers to defer to an earlier eligibility determination when reviewing certain Form I-129 petitions involving the same parties and underlying facts.
Under the current rule, USCIS generally follows its previous determination unless officers identify a material error, a material change in circumstances or eligibility requirements, or new adverse information. The policy commonly applies when an employer seeks to extend an approved worker petition without significantly changing the job or employment arrangement.
The proposal is not yet in effect. The existing deference regulation will remain controlling unless DHS completes the rulemaking process and publishes a final rule with an effective date.
DHS said removing the requirement would reinforce the employer’s responsibility to prove eligibility in every filing. Officers could still consider an earlier approval, but they would not be required to begin their review by giving that decision special weight.
The policy has changed several times. USCIS introduced deference through agency guidance in April 2004, withdrew it in October 2017 and restored it in April 2021. DHS then placed the policy into federal regulations through an H-1B modernization rule published in December 2024.
The agency argues that independent review could help officers identify outdated facts, earlier mistakes or indications of fraud. DHS estimates that removing deference could produce about 6,044 additional evidence requests annually. It also acknowledges that petitioners may experience longer processing times, additional preparation costs and greater uncertainty regarding continued employment.
If finalized, the rule could affect extensions across Form I-129 classifications, including H-1B, L-1 and O-1 workers. Employers may need to document current job duties, business operations and worker qualifications more fully, even when USCIS previously approved a similar petition.
For international students moving from F-1 status into employment, the proposal does not directly change the H-1B cap process. Its practical importance may arise later, when an employer files an extension for a worker who already holds nonimmigrant employment status.
Public comments are due November 13, 2026, through the federal rulemaking portal under docket USCIS-2026-0529. DHS must review submitted comments before deciding whether to issue a final regulation.
This article provides general information and does not constitute legal advice. Workers and employers should consult qualified immigration counsel about individual cases.