DHS Seeks to Remove USCIS Deference Rule for Repeat H-1B and Other Form I-129 Extensions

The Department of Homeland Security has proposed removing the regulation that requires U.S. Citizenship and Immigration Services officers to defer to earlier approvals when adjudicating repeat Form I-129 extension petitions involving the same parties and underlying facts. If finalized, the change could make H-1B and other employment-based extension filings less predictable, but nothing changes yet and current rules remain in force until a final rule takes effect.

The proposal would affect employers and foreign workers who rely on successive extensions to maintain work authorization under classifications including H-1B, L-1, O-1, TN and E. The practical concern is most acute for workers whose status has already been extended multiple times and for employers with evolving work arrangements, payroll structures or corporate changes that could draw renewed scrutiny in a later filing.

DHS codified its deference policy in December 2024 at 8 C.F.R. § 214.1(c)(5) as part of a broader rule on H-1B and related nonimmigrant programs. Under that framework, when USCIS reviews a Form I-129 involving the same parties and the same underlying facts, officers generally give weight to the prior approval unless there was a material error, a material change in circumstances or new material information that adversely affects eligibility.

What the proposal would change

The new proposal would remove that required presumption of deference rather than replace it with a new standard. Officers could still consider a prior approval as evidence, but they would not have to begin from the assumption that the earlier decision was correct. DHS says each petitioner, applicant or beneficiary must independently establish eligibility for each immigration benefit request, and the agency argues that prior approvals should not carry a case forward on their own.

In practical terms, repeat extensions could be reviewed more like fresh filings even when the job itself has not materially changed. Questions that may receive renewed attention include whether the position still qualifies as a specialty occupation, whether the wage and payroll records support the filing, whether the employer-employee relationship remains intact, whether the worksite or itinerary has changed and whether the worker continues to meet the qualifications for the requested classification.

The same approach would apply across Form I-129 filings, not just H-1B cases. That means the proposed rule could affect a broad range of nonimmigrant workers and their employers, especially those who file repeated extensions over many years or who have older supporting records that may no longer line up neatly with current business operations.

Potential effects on employers and workers

Immigration attorneys and industry analysts expect the change, if adopted, could increase the number of Requests for Evidence, lengthen adjudications and raise legal and administrative costs. They also expect more variability from one officer to another, particularly in cases involving older job descriptions, changed worksites or wages, mergers, layoffs or imperfect maintenance-of-status records.

One estimate cited in industry commentary puts the potential increase at more than 6,000 additional RFEs each year, though that figure is not a DHS projection. For workers filing a third or fourth extension, the stakes may be higher if they are still waiting for employment-based green-card processing and depend on continued H-1B status while that process moves forward.

For employers, the proposal underscores the importance of building a current, well-documented filing record. Materials that may be useful include updated job duties, an organizational chart, recent pay statements, payroll records, W-2s or tax documents where appropriate, labor condition application records, current worksite or remote-work information, proof that the business continues to operate and documents showing the worker’s credentials or licensing, if required.

Employers would also need to explain any changes since the last approval, including shifts in duties, pay, worksite, reporting structure, corporate ownership or the broader employment arrangement. Gaps between older filings and current records could invite questions even if the role itself has not changed in substance.

Employees can help by confirming their current duties, work location and any changes to the terms of employment so the petition reflects the actual working arrangement. That kind of consistency matters even under the current framework, but it could become more important if the proposal is finalized and USCIS no longer starts from a position of deference to prior approvals.

The rule is still pending

The proposal was reported on October 13 and October 14, 2026, and was expected to be published in the Federal Register. The public-comment period is reported to run for 30 days, with an expected close around November 13, 2026. Those dates are not an effective date, and DHS has not announced a final implementation schedule, transition period or grace period.

Until a final rule is issued and takes effect, USCIS continues to follow the current deference policy. Pending and newly filed extension petitions remain subject to the existing framework, and the proposal does not automatically reopen or revoke prior approvals.

For now, the practical message for employers and workers is straightforward: the deference rule is under review, but it is still the governing standard. Any change would arrive only after the rulemaking process runs its course and DHS publishes a final rule with an effective date.