What Was Proposed
On October 14, 2026, DHS published a proposed rule to remove 8 CFR 214.1(c)(5), the regulation that requires USCIS to give deference to a prior approval when it decides a later Form I-129 filing involving the same parties and the same underlying facts (91 FR 65119). That situation arises most often when an employer files to extend a worker's petition or stay in the same classification.
This is a proposal, not a final rule. Until DHS publishes a final rule, the deference regulation remains in effect.
What Deference Means Today
Under the current regulation, USCIS generally defers to its earlier determination of eligibility for the same classification unless it finds:
- A material error in the prior approval
- A material change in circumstances or eligibility requirements
- New, material information that adversely affects eligibility
According to the proposed rule, the Policy Manual also requires an officer who declines to defer to acknowledge the prior approval in the RFE, NOID, or denial, explain why deference is not appropriate, and give the petitioner an opportunity to respond.
Deference has never guaranteed approval. As DHS noted when it adopted the rule in 2024, petitioners still have the burden to present all required evidence.
A Policy That Has Changed Before
The proposed rule traces the history:
- 2004: USCIS memo first instructed officers to defer to prior approvals on extensions with the same parties and facts.
- 2017: USCIS rescinded that guidance (PM-602-0151), saying it improperly shifted the burden to USCIS.
- 2021: USCIS reinstated deference in the Policy Manual.
- December 2024: DHS codified deference at 8 CFR 214.1(c)(5) in the H-1B modernization rule (89 FR 103054).
- October 2026: DHS proposes removing it.
What Would Change
If the rule is finalized, USCIS officers would no longer be directed to defer to a prior approval. Each extension would be decided on the evidence in that filing, with the burden of proof on the petitioner (INA 291; 8 CFR 103.2(b)(1)).
DHS's stated reasons are that deference, in practice, shifted the burden to officers to justify departing from a prior approval, encouraged less complete review, and risked perpetuating erroneous approvals. DHS also states that removing deference "does not substantively change eligibility" for any classification.
The rule would apply to Form I-129 filings, which include classifications such as O-1, L-1, and H-1B.
What This Could Mean in Practice
The eligibility standards would not change. Under the proposal, each extension would be reviewed on its own evidence, which matters most for categories where the evidence is qualitative, such as:
- O-1A: whether the beneficiary still has extraordinary ability, and the itinerary or work to be performed (see our guide to O-1A extensions and advisory opinions)
- L-1A: whether the role is still managerial or executive (see our guide to the L-1A)
- L-1 new offices: whether the office has grown enough to support the role (see L-1 new office petitions)
- H-1B: whether the position is still a specialty occupation
How to Prepare Extension Filings
None of these points guarantees an outcome, but each tracks the burden of proof described above:
- Treat each extension as a complete case. Document current eligibility rather than relying on the prior approval.
- Update the evidence. Include current organizational charts, job duties, achievements, and other evidence relevant to the classification.
- Explain changes. If facts have changed since the prior approval, address them directly.
- File early so there is time to respond to an RFE within your authorized stay. Consider premium processing where timing is tight.
- Prepare for RFEs. See our guide to responding to an RFE.
How to Comment
Comments must be submitted through regulations.gov under DHS Docket No. USCIS-2026-0529 on or before November 13, 2026. DHS states that comments sent other ways, including email or mail, will not be considered, and all submissions are posted publicly, including any personal information they contain.
DHS says the most useful comments reference a specific part of the proposal, explain the reason for any recommended change, and include supporting data, information, or authority. Employers and workers who have relied on deference in planning extensions may wish to describe that experience.
Our Public Comment
Kevin J Andrews Law plans to submit a public comment on this proposed rule before the November 13 deadline. Once it is filed, we will post it on our Advocacy page alongside our earlier public comments.
Key Takeaways
- DHS proposed removing the deference regulation, 8 CFR 214.1(c)(5), on October 14, 2026.
- Deference remains in effect until a final rule is published.
- Removing deference would not change eligibility standards, but extensions would be reviewed on their own evidence.
- O-1, L-1, and H-1B extensions are among the filings that would be affected.
- Comments are due November 13, 2026, at regulations.gov.
Planning an O-1, L-1, or H-1B extension? Schedule a consultation to review your evidence before you file.
Sources and References
- DHS, Removing Deference to Prior USCIS Determinations of Eligibility, Proposed Rule, 91 FR 65119 (Oct. 14, 2026)
- 8 CFR 214.1: Paragraph (c)(5), deference to prior approvals
- 8 CFR 103.2: Paragraph (b)(1), eligibility at filing and through adjudication
- USCIS Policy Manual, Volume 2, Part A, Chapter 4: Extension of Stay, Change of Status, and Extension of Petition Validity
This document provides general information only and does not constitute legal advice. Immigration law is complex and individualized. Outcomes depend on specific facts and circumstances. No results are guaranteed. Always consult with a qualified immigration attorney before making decisions about your immigration case.
About Kevin J Andrews
Kevin J Andrews is a business immigration attorney with 15+ years of experience specializing in EB-1A, O-1A, NIW, and L-1 petitions. He is the founder of Kevin J Andrews Law.