USCIS Proposes Removing Deference to Prior Approvals on I-129 Extensions
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On 14 October 2026 DHS proposed a rule that would end the requirement for officers to defer to a prior approval when deciding a Form I-129 extension. USCIS removing deference to prior approvals would mean that an E-2, L-1, O-1, H-1B or TN extension is examined on its own merits rather than resting on the petition that was approved before it. The rule is a proposal, not law, and the comment period closes on 13 November 2026.
What the rule actually proposes
On 14 October 2026 the Department of Homeland Security published a notice of proposed rulemaking titled Removing Deference to Prior USCIS Determinations of Eligibility (RIN 1615-AD26, DHS Docket No. USCIS-2026-0529, 91 FR 65119). The proposal would delete 8 CFR 214.1(c)(5), the regulation that currently tells officers to defer to an earlier approval when a Form I-129 involves the same parties and the same underlying facts.
Deference is not a new idea. USCIS first instructed officers to follow it in 2004, rescinded that guidance in 2017, restored it in the Policy Manual in 2021, and then wrote it into the regulations in the December 2024 H-1B modernization final rule. Removing it now would undo that codification. USCIS would also revise the internal guidance that currently requires an officer to explain a decision not to defer and to get supervisory sign-off on it.
A prior approval would not become irrelevant. An officer could still look at it. What would disappear is the starting presumption that it was correct, and the paperwork that currently discourages an officer from departing from it quietly.
| Element | Where it stands today | Under the proposal |
|---|---|---|
| Prior approval, same employer and same facts | Officer defers to it unless there is a material error, a material change in circumstances, or new adverse information | Officer evaluates eligibility afresh; the prior approval is evidence, not a presumption |
| Where the rule lives | 8 CFR 214.1(c)(5), codified December 2024 | The provision would be removed |
| Officer declining to defer | Must articulate the reason and obtain supervisory approval | That requirement would be revised away |
| Burden of proof | On the petitioner (INA 291) | Unchanged — it was always on the petitioner |
| Status right now | In force. Nothing has changed | Proposed only; comments close 13 November 2026 |
Who it reaches
The rule is written around Form I-129, so it touches the nonimmigrant worker classifications that use it. The proposal’s own footnote listing the extension-of-stay classifications names 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 and their essential-support categories, Q-1, R-1 and TN.
For our clients that list is not abstract. A Turkish founder on an E-2 who has renewed twice on substantially the same business, a manager transferred on an L-1A coming up on the fifth-year limit, a researcher on an O-1 whose field has not changed — each of these is a file where the second and third filings have historically leaned on the first. That lean is what the proposal removes.
Dependants file Form I-539, which this proposal does not address. But a spouse’s status follows the principal’s, so an extension that stalls on an RFE carries the family with it.
The numbers DHS put in its own proposal
DHS estimated that deference currently applies to roughly 208,429 petitions a year, and projected about 6,044 additional requests for evidence annually if the provision is removed. That is a small share of the whole — but a request for evidence is not a small event for the petition that receives one. DHS’s figures put the median additional time for a petition that draws an RFE at 64 days.
Sixty-four days matters because extension timing is already tight. A worker whose status expires while a timely-filed extension is pending may keep working for up to 240 days under 8 CFR 274a.12(b)(20), but that clock does not stretch, and it does not cover international travel or a driving-licence renewal that needs an unexpired I-94.
What a petitioner should do differently
Nothing in this proposal is in effect, and we are not telling clients to change a filing that is already prepared. But the drafting habits that make an extension survive a fresh look are the same habits that make any petition stronger, and they cost nothing to adopt now.
The practical shift is to stop writing extensions as updates and start writing them as filings that stand on their own.
- Re-document, do not cross-reference. An extension that says “as previously approved” gives a fresh-eyes officer nothing to approve. Put the current evidence in the record.
- Reconcile against the earlier filings. Duties, worksite, salary, ownership and corporate structure should match what was filed before — or the change should be explained in the petition rather than discovered in an RFE.
- Build in time. File at the earliest point the category allows, and price premium processing into the budget as a contingency rather than a surprise.
- Keep the file. Prior petitions, exhibits, RFE responses and approval notices are the raw material for the next filing. Firms that discard them pay to rebuild them.
- Comment if it affects you. Written comments go through regulations.gov under docket USCIS-2026-0529 and close on 13 November 2026. Comments sent by email, post or hand delivery will not be considered, and submissions are published.
This is a proposed rule. 8 CFR 214.1(c)(5) is still in force, officers are still required to defer in qualifying cases, and no petition should be withdrawn, re-filed or delayed because of a proposal. A final rule, if one comes, would be published separately with its own effective date and could differ from what was proposed. Anyone telling you that deference has already ended is wrong.
Frequently asked questions
Has the deference rule actually changed?
No. This is a proposed rule published on 14 October 2026. The existing regulation, 8 CFR 214.1(c)(5), remains in effect until a final rule is published and takes effect. Nothing about how your pending extension is being adjudicated has changed.
Which visa categories would this affect?
It is written around Form I-129. The proposal’s own list of extension-of-stay classifications covers 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 and their essential-support categories, Q-1, R-1 and TN.
Would my prior approval be ignored?
No. An officer could still consider it. What would change is that it would no longer carry a presumption of correctness, and the officer would not need supervisory approval to reach a different conclusion.
Does this make an extension more likely to be denied?
DHS projected roughly 6,044 additional requests for evidence a year, not a projection of additional denials. An RFE is a request for more proof, and a well-documented petition answers it. The more reliable effect is on timing: DHS’s own figures put the median additional time for a petition that draws an RFE at 64 days.
Can I still work while my extension is pending?
If the extension was filed on time and you are in a category that qualifies, 8 CFR 274a.12(b)(20) generally permits continued employment with the same employer for up to 240 days while the petition is pending. That authorisation does not cover travel, and it ends if the petition is denied.
Can I submit a comment on the proposal?
Yes. Comments go through regulations.gov under DHS Docket No. USCIS-2026-0529 and must be submitted on or before 13 November 2026. Comments sent by email, post or hand delivery will not be considered, and everything submitted, including personal information, becomes public.
Ozek Law Firm, LLC · Tolga Ozek, Attorney at Law
4500 East West Highway, Suite 150, Bethesda, MD 20814
2 Wisconsin Circle, Suite 700, Chevy Chase, MD 20815
+1 (202) 854-8545 · info@ozeklaw.com · ozeklaw.com/contact
Tolga Ozek is the founder of Ozek Law Firm, LLC in Bethesda, Maryland. He is admitted in Maryland, New York and the District of Columbia. His practice covers business and immigration law, including investor and intracompany-transfer visas, employment-based immigration, family-based immigration and adjustment of status.
We prepare I-129 extensions as filings that stand on their own. Consultations are with an attorney and are confidential.
This page is for general information only and does not constitute legal advice. Attorney Advertising. It describes a notice of proposed rulemaking published at 91 FR 65119 on 14 October 2026 (RIN 1615-AD26, DHS Docket No. USCIS-2026-0529) and is current as of 1 November 2026. The proposal is not in effect and may be changed or withdrawn. No attorney can guarantee an outcome.
Ozek Law Firm, LLC · 4500 East West Highway, Ste 150, Bethesda, MD 20814 · 2 Wisconsin Circle, Ste 700, Chevy Chase, MD 20815 · +1 (202) 854-8545 · info@ozeklaw.com · www.ozeklaw.com
Licensed in Maryland, New York and Washington, D.C.; federal immigration practice across the United States. Consultations in English, Turkish, Spanish, Arabic, Russian and Chinese.
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