The Department of Homeland Security proposed removing the regulation that tells U.S. Citizenship and Immigration Services officers to give deference to a prior approval when they adjudicate a request to extend a nonimmigrant worker’s petition or stay. The notice of proposed rulemaking is scheduled for publication in the Federal Register on October 14, 2026, and an advance copy was available on October 13. The proposed rule is here .
The regulation at issue, 8 CFR 214.1(c)(5), was added in December 2024 in the H-1B modernization rule. It says that when USCIS adjudicates a Form I-129 request involving the same parties and the same underlying facts, it gives deference to its prior determination of eligibility unless there was a material error, a material change, or new material information that adversely affects eligibility. DHS now says the provision is in tension with the statute, which places the burden of proving eligibility on the petitioner, applicant or beneficiary. Removing it would mean officers review each extension request for eligibility rather than starting from the earlier approval.
DHS expects the change to produce more Requests for Evidence. It estimates new annual costs to petitioners of about $133,987 from the added RFE burden, plus longer adjudication times and more uncertainty about continued employment. The change would apply to benefit requests filed on Form I-129, which covers H-1B, L-1, O-1, E-1, E-2, E-3, H-2A, H-2B, H-3, P, Q, R and TN workers, with dependents filing on Form I-539.
DHS said about 30 percent of Form I-129 petitions were eligible for deference across fiscal years 2014 through 2025 — 2,168,394 of 7,206,852 petitions. In the most recent period when the policy was fully in effect, fiscal years 2022 through 2025, eligible petitions rose from 195,547 to 235,583 a year, or about 27 to 33 percent of filings.
The document is a proposal, not a final rule, and it is not in effect. Comments must be submitted within 30 days of publication through regulations.gov under Docket No. USCIS-2026-0529. A final rule could be changed, delayed or withdrawn. The proposal is separate from the recent PERM suspensions and the H.R. 1 H-1B fee actions, and it does not change the eligibility rules for an H-1B petition or for EB-2 NIW and EB-1A petitions.
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Source: Federal Register