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The USCIS deference proposal is the US Department of Homeland Security’s plan to end the rule that tells US Citizenship and Immigration Services (USCIS) to defer to prior approvals when it reviews work-visa extensions. The proposal was published in the Federal Register on 14 October 2026 and would delete 8 CFR 214.1(c)(5). It is only a proposal: the current deference rule stays in force unless and until DHS issues a final rule. Public comments close on 13 November 2026.
In this report
- What DHS proposes
- DHS’s own estimates
- Who could be affected
- What changes for employers and workers
- What happens next
- Questions on the deference proposal
What DHS proposes
Under the current regulation, when USCIS decides an extension petition on Form I-129 involving the same parties and the same facts as an earlier approval, it generally defers to that earlier decision. The exceptions are a material error, a material change, or new material information that hurts eligibility. DHS says removing the provision places the burden of proof squarely on the petitioner and leads to a fuller review. Officers could still consider a prior approval where relevant, but it would carry no automatic weight.
Law firm Manifest Law, in its summary of the proposal, lists H-1B, L-1, O-1, TN and E classifications among the extensions that could be affected. Eligibility standards for each category would not change. What changes is how much an officer may rely on what was already decided.
DHS’s own estimates
The figures below come from DHS’s notice and should be read as the agency’s claims, not independent findings. DHS says about 208,429 Form I-129 petitions a year, out of roughly 688,830, were eligible for deference on average between fiscal years 2022 and 2025. It estimates the change would raise the rate of requests for evidence (RFEs) by 2.9 percentage points, or about 6,044 additional RFEs a year, and says it found no corresponding change in denial rates. It puts added cost to petitioners at about $133,987 a year.
Manifest Law reports that DHS justifies the change partly with worksite-inspection data, citing fraud or noncompliance findings of 22.4% for H-1B extensions in fiscal years 2022 to 2025, against 16.8% in fiscal years 2018 to 2020 when deference did not apply. Those are DHS’s numbers, presented by an agency that has an interest in the outcome.
Who could be affected
The people most exposed are those on a long-running status with the same employer. Consider a hypothetical example. Arjun is an Indian software engineer on an H-1B whose employer files for a three-year extension with the same job duties. Today, USCIS would normally treat the first approval as the starting point. Under the proposal, an officer could ask him to prove again that the role is a specialty occupation, even though nothing changed. Employers and workers from every country use these categories, so the proposal is not specific to any one nationality.
What changes for employers and workers
The practical effect is likely to be more paperwork and more waiting. A timely filed extension can generally allow continued work while it is pending, and the regulation on work authorization sets limits on how long that lasts. A longer review leaves less of that window. Manifest Law’s advice is to file complete petitions with initial-level evidence and not to assume a prior approval will carry the case.
The proposal also arrives alongside other tightening on the same classifications. Tamara News has tracked the H-1B $100,000 fee extension and the proposed $70,000 OPT fee. If you are planning a move to the US on a work route, the visa eligibility checker can help you compare routes before you commit.
What happens next
Comments must be submitted through Regulations.gov under docket USCIS-2026-0529 by 13 November 2026, before midnight Eastern time. DHS must then review them before it can finalise, change or withdraw the proposal. The proposed text, as summarised by Manifest Law, does not explain how pending petitions would be treated at the effective date, so that is a question to watch in any final rule.
Questions on the deference proposal
Is deference to prior approvals already gone?
No. The proposal is not final. The current rule remains in effect until DHS issues a final rule.
When is the comment deadline?
13 November 2026, through Regulations.gov under docket USCIS-2026-0529.
Which visas could be affected?
Form I-129 extensions, including H-1B, L-1, O-1, TN and E classifications, where the parties and facts match an earlier approval.
How many petitions does DHS say are eligible for deference?
DHS estimates about 208,429 a year, based on a fiscal 2022 to 2025 average.
Will approval standards change?
No. The eligibility criteria for each classification stay the same. The proposal changes how much weight a past approval carries.
What should employers do now?
File complete extension petitions with fresh evidence and plan for possible requests for evidence, rather than relying on a past approval.
Sources
- Federal Register — Removing Deference to Prior USCIS Determinations of Eligibility. https://www.federalregister.gov/documents/2026/10/14/2026-20941/removing-deference-to-prior-uscis-determinations-of-eligibility
- Manifest Law — DHS proposal to end deference, 13 October 2026. https://manifestlaw.com/news/deference-extension-10-13-2026
- Regulations.gov — Docket USCIS-2026-0529. https://www.regulations.gov/docket/USCIS-2026-0529
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