DHS Proposes to Rescind 'Deference to Prior Approvals' Rule for H-1B, L-1 and Other I-129 Extension Petitions

If this rule is ultimately adopted, USCIS officers may still refer to prior approval records, but will no longer defer to prior decisions by default.

On October 14, 2026, the U.S. Department of Homeland Security, through U.S. Citizenship and Immigration Services, issued a proposed rule (91 FR 65119; DHS Docket No. USCIS-2026-0529) to repeal 8 CFR 214.1(c)(5). The current regulation requires USCIS, when adjudicating Form I-129 petitions involving the same parties and substantially the same facts, to defer to prior eligibility determinations, unless there is a material error, a material change, or new material information affecting eligibility. The public comment period closes on November 13, 2026. Interested parties may submit comments during this 30-day public comment period. Comments must reference DHS Docket No. USCIS-2026-0529 and be submitted via regulations.gov no later than November 13, 2026.

Historical Background

USCIS first required officers to defer to prior approvals in a 2004 memorandum, citing consistency and efficiency. USCIS rescinded that guidance in 2017, then restored the provision in 2021 in the USCIS Policy Manual. DHS formally codified it in the December 2024 H-1B Modernization Final Rule. The proposed rule now would completely repeal this regulatory provision.

Key Changes

If the rule is finalized, USCIS officers may still refer to prior approvals, but will no longer treat them as a default starting point for deference. USCIS will also revise current guidance. Previously, if an officer decided not to defer to a prior approval, the officer had to explain the decision and obtain supervisory approval; that requirement would be eliminated. The change would affect all Form I-129 categories, including H-1B, L-1, O-1, TN, E and P visa petitions. Extension petitions filed by the same employer would be most directly affected, and some change petitions may also be affected.

Until the final rule is officially published and takes effect, the current regulation remains in force.

DHS Rationale

DHS believes that deference to prior approvals effectively shifts the burden of proof from the petitioner to the officer. This not only reduces officers' willingness to request additional evidence, but also allows erroneous or fraudulent approvals to be carried forward. DHS estimates that about 208,429 petitions per year are subject to the 'deference to prior approval' principle, and projects that the new rule would add about 6,044 Requests for Evidence (RFEs) per year. On the same day DHS issued the proposed rule, it also issued a final rule confirming the termination of automatic extension of most Employment Authorization Documents (EADs).

Impact on Employers and Foreign Workers

If the new rule is finalized, the following consequences are expected:

Independent Review of Each Extension Petition

Each time an extension petition is filed, USCIS will make a new eligibility determination without presuming that the prior approval was correct. As a result, officers may re-examine matters previously approved, including whether the position qualifies as a specialty occupation, whether a manager qualifies for L-1A, or whether the employee continues to meet O-1 visa standards.

More RFEs and Longer Processing Times

Petitions that receive an RFE see a median increase of 64 days in processing time, making adjudication timelines less predictable and workforce planning more difficult for employers.

Increased Risk to Work Authorization Continuity

When an extension petition is timely filed by the same employer, the employee generally may continue working for up to 240 days after the period of authorized stay expires while the petition is pending. Longer processing times increase the likelihood that a regular processing petition remains pending beyond 240 days. At that point, the foreign worker must stop working until USCIS approves the petition. For families, because the automatic EAD extension mechanism has been eliminated for many dependents such as H-4 spouses, such delays will worsen their difficulties.

Greater Importance of the Initial Petition

An initial approval no longer provides a safeguard for later extension petitions. The job description, salary level, work location information, organizational chart and qualification criteria submitted in a new petition must be accurate and consistent throughout the employee's entire employment period, because inconsistencies between earlier and later petitions will more easily invite scrutiny.

Recommended Actions for Employers

To reduce risk, employers should work with immigration counsel to do the following:

• Prepare extension petitions as a complete, new filing, re-establishing eligibility with evidence rather than relying mainly on the prior approval notice and a brief employer letter.

• Identify petitions that will need extension in the coming year, start preparing early, and allow time to respond to possible RFEs.

• Consider requesting premium processing together with the extension petition, or requesting premium processing as early as possible, to ensure a decision is received before the 240-day automatic work authorization extension expires.

• Compare each petition with prior petitions, Labor Condition Applications (LCAs) and visa applications, and explain in advance any changes in duties, work location, compensation or corporate structure.

• When drafting the initial petition, plan for the full lifecycle of the case, and retain prior petition documents, supporting evidence, RFE responses and approval notices for use in future filings.

• Consider submitting comments. Comments must reference DHS Docket No. USCIS-2026-0529 and be submitted via regulations.gov no later than November 13, 2026. Comments submitted by email, mail or hand delivery will not be considered. Submitted comments (including personal information) will be made public.