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Immigration News Alert
USCIS Proposes Ending Deference for Nonimmigrant Worker Extension Petitions
- U.S. Citizenship and Immigration Services has proposed removing its deference policy for certain Form I-129 extension petitions, which could lead to increased scrutiny and additional evidence requests for employers seeking to extend nonimmigrant worker status.
USCIS Proposes Ending Deference for Extension Petitions
The U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) have published a proposed rule that would eliminate the current requirement for USCIS officers to defer to prior eligibility determinations when adjudicating extensions of nonimmigrant worker petitions filed on Form I-129. The proposal is scheduled for publication in the Federal Register on October 14, 2026, and will be open for public comment for 30 days.
If finalized, the change would affect extension requests across numerous employment-based nonimmigrant categories, including H-1B, L-1, O-1, TN, E, H-2, P, Q and R classifications filed using Form I-129.
What Is the USCIS Deference Policy?
Under the current regulation, USCIS officers generally defer to a prior approval when reviewing an extension petition involving the same employer, employee, and underlying facts, unless there is:
- A material error in the previous approval;
- A material change in circumstances; or
- New material information that adversely affects eligibility.
According to DHS, the policy was designed to promote consistency and efficiency in the adjudication process.
How Would the Proposed Rule Change Extension Petition Adjudications?
If the proposed rule is implemented, USCIS officers would be instructed to independently evaluate each extension petition on its own merits rather than giving deference to prior determinations.
Under the proposal:
- Prior approvals would not automatically support future extension approvals;
- Petitioners would continue to bear the burden of demonstrating eligibility with each filing;
- USCIS officers could conduct a full review of all eligibility requirements during extension adjudications; and
- Employers may be required to submit more extensive supporting documentation with extension petitions.
Which Visa Categories Could Be Affected?
The proposal would apply to Form I-129 extension petitions, including those filed for:
- H-1B specialty occupation workers;
- L-1 intracompany transferees;
- O-1 individuals with extraordinary ability;
- TN professionals under the United States-Mexico-Canada Agreement (USMCA);
- E treaty traders and investors;
- H-2 temporary workers;
- P performers and athletes;
- Q cultural exchange participants; and
- R religious workers.
DHS Rationale for Removing Deference
DHS states that eliminating the deference requirement would:
- Reinforce that the burden of proving eligibility remains with the petitioner;
- Allow officers to conduct a full review of each filing based on current facts and evidence;
- Reduce the risk of perpetuating prior adjudication errors;
- Strengthen fraud detection and program integrity efforts; and
- Support government priorities aimed at protecting U.S. workers.
DHS has stated that prior approvals should not automatically influence future adjudications if officers identify concerns during a new review.
Potential Impact on Employers and Foreign National Employees
If finalized, the proposal could have significant implications for employers sponsoring foreign talent.
Potential impacts include:
- Increased Requests for Evidence (RFEs);
- More detailed documentation requirements;
- Longer adjudication timelines;
- Greater case preparation burdens for employers and employees; and
- Increased uncertainty when relying on prior approvals for extension filings.
DHS estimates the proposal could result in thousands of additional RFEs annually across affected visa categories.
Background
USCIS first adopted a deference policy for qualifying extension petitions in 2004, rescinded the policy in 2017, reinstated it in 2021, and formally codified it through the H-1B modernization rule in December 2024. The new proposal would again remove the deference regulation from immigration regulations.
Public Comment Period and Next Steps
The proposal is expected to be published in the Federal Register and will be subject to a 30-day public comment period.
At this stage, the change remains a proposed rule and is not yet in effect. Employers and foreign nationals should continue following existing USCIS requirements while monitoring further developments.
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To discuss how these changes may affect your organization, current Envoy Global clients should contact the Advisory team or engage their regular immigration consultant.
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