The Department of Homeland Security has proposed ending a USCIS rule that generally requires immigration officers to defer to prior approvals when reviewing certain Form I-129 petitions involving the same parties and underlying facts.
Published on October 14, 2026, the proposal could make H-1B and other nonimmigrant worker extensions less predictable by allowing officers to review eligibility without beginning from the position that the previous USCIS decision was correct.
However, this is a proposed rule—not a final rule. The existing deference requirement remains in effect while DHS completes the rulemaking process. (public-inspection.federalregister.gov)
Under the current regulation at 8 CFR 214.1(c)(5), USCIS generally gives deference to an earlier eligibility determination when:
DHS proposes removing that regulation. If the proposal becomes final, USCIS officers could independently reevaluate an extension petition instead of starting with the previous approval.
Officers would still be allowed to consider a prior approval. They simply would not be required to defer to it. The employer would remain responsible for establishing eligibility through the evidence submitted with each petition. (public-inspection.federalregister.gov)
The proposal does not change the underlying eligibility requirements for H-1B or other nonimmigrant classifications. It would change how USCIS approaches its review of petitions following an earlier approval.
The proposed change applies to benefit requests filed using Form I-129, including petitions involving:
The practical impact would be greatest in extension cases where the employer, worker, position and relevant facts remain substantially unchanged. These are the cases most likely to receive deference under the current rule. (public-inspection.federalregister.gov)
For example, an H-1B worker extending employment with the same company in the same position could face a more extensive review of the position, qualifications and supporting evidence—even if USCIS previously approved the case.
DHS estimates that approximately 208,429 petitions per year may currently qualify for deference. Based on historical data, the agency projects that removing the policy could increase the Request for Evidence rate by 2.9 percentage points, producing approximately 6,044 additional RFEs annually.
Importantly, DHS said its historical analysis did not show a corresponding change in denial rates. The agency’s estimates therefore point primarily to additional scrutiny and documentation requests, not necessarily thousands of additional denials. (public-inspection.federalregister.gov)
Still, an RFE can create meaningful delays. DHS reported that, based on fiscal years 2022 through 2025, petitions receiving an RFE took an average of 64 additional calendar days to reach an initial decision compared with petitions without an RFE. The agency acknowledged that longer processing could create uncertainty for staffing, project planning and workers awaiting decisions about continued employment. (public-inspection.federalregister.gov)
If the rule is finalized, employers may need to submit more complete current evidence with extension petitions rather than assuming that a prior approval will resolve questions about eligibility. Depending on the classification, relevant documentation could include updated job duties, employment terms, work locations, wage records and evidence that the worker maintained lawful status.
The proposal does not change the rules governing F-1 status, CPT, Day 1 CPT, OPT or STEM OPT. It also does not modify the H-1B cap registration or selection process.
Most students moving from F-1 or OPT to H-1B for the first time would not have a prior H-1B approval involving the same employer and facts. As a result, the deference policy generally has greater relevance after a worker has already obtained H-1B status and later needs an extension.
Students planning longer-term employment in the United States should nevertheless understand that, if the proposal becomes final, an initial H-1B approval may provide less predictability for future extensions. Every later petition would need to independently establish continued eligibility.
DHS is accepting public comments for 30 days following the proposal’s October 14, 2026 publication. That places the comment deadline on November 13, 2026.
After reviewing comments, DHS may issue a final rule, revise the proposal or withdraw it. There is currently no effective date for ending deference because no final rule has been published.
Until a final rule takes effect, USCIS remains subject to the existing regulation requiring deference in qualifying Form I-129 cases. Employers and workers should therefore distinguish the October 2026 proposal from a policy change that is already in force.