USCIS Proposes Ending Deference to Prior Approvals for Worker Extensions

On October 14, 2026, DHS/USCIS published a proposal to eliminate 8 CFR 214.1(c)(5), a provision governing how previous eligibility determinations are considered when reviewing petitions filed on Form I-129.

This is only a proposed rule. The change has not taken effect.

What Is Being Proposed?

Currently, when reviewing work status extensions, USCIS takes previous approvals into consideration if the parties and underlying circumstances remain the same. Under certain conditions, the principle of deference applies, meaning USCIS generally follows its previous eligibility determination.

However, an officer may depart from that determination if there was a material error in the previous approval, a material change in circumstances or eligibility requirements, or new material information that adversely affects eligibility.

DHS proposes eliminating this rule. If adopted, USCIS officers would be able to reassess eligibility independently of previous approvals, even when the underlying circumstances have not changed.

The requirement to establish eligibility would remain unchanged: petitioners are already responsible for providing sufficient evidence.

What Could This Look Like in Practice?

Consider a hypothetical example: an employer files an H-1B extension petition for the same employee, and the underlying circumstances remain unchanged.

Currently, USCIS takes the previous approval into consideration and generally follows its earlier determination when the applicable conditions are met.

If the proposal is adopted, an officer could review the petition independently of the previous favorable decision, even if the circumstances remain the same.

This example illustrates the proposed change but does not predict whether a particular petition will be approved, denied, or receive a Request for Evidence (RFE).

What Does DHS Say About Potential Delays?

In the proposed rule, DHS acknowledges:

"Petitioners may experience longer processing times and increased uncertainty regarding continued employment when extending their stay and petition validity."

DHS estimates that eliminating the rule could result in approximately 6,044 additional Requests for Evidence (RFEs) per year. This is the agency's projection, not an outcome that has already occurred.

Why Does This Matter for Employers and Employees?

Additional requests for evidence could make it more difficult to plan hiring, work assignments, and project timelines. DHS specifically acknowledges these potential consequences.

However, a possible increase in RFEs does not necessarily mean an increase in denials. DHS states that its analysis does not indicate an expected change in denial rates.

Source: Official DHS/USCIS Proposed Rule.