The Department of Homeland Security has proposed removing the rule that tells USCIS officers to give deference to an earlier approval when a nonimmigrant worker petition is filed to extend it, according to the Federal Register notice published October 14.
The Notice of Proposed Rulemaking (NPRM)A formal announcement of a rule an agency intends to adopt, usually open for public comment before it takes effect.See it in the glossary would delete 8 CFR 214.1(c)(5) and end the deference policy for Form I-129 petitions. It is a proposal only. Under the proposal-versus-rule distinction, the current deference rule stays in force until DHS issues a Final ruleThe version of a federal regulation that an agency publishes in the Federal Register after reviewing public comments on a proposed rule. It sets an effective date, which generally falls at least 30 days after publication, and its text is added to the Code of Federal Regulations.See it in the glossary and it takes effect.
What the deference rule does today
Under the current regulation, when USCIS reviews a Form I-129 involving the same parties and the same underlying facts as an earlier approval, the officer gives deference to that earlier decision. The exceptions are a material error in the prior approval, a material change in circumstances or eligibility requirements, or new material information that adversely affects eligibility.
The rule applies most often when an employer asks to extend a worker’s status. It covers the classifications that use Form I-129, such as Cap-subject and cap-exempt (H-1B)The H-1B category has an annual limit of 65,000 new visas or statuses per fiscal year, plus 20,000 more for people with a U.S. master's degree or higher. Petitions counted toward that limit are cap-subject. Petitions from higher education institutions, their related or affiliated nonprofits, and nonprofit or governmental research organizations are cap-exempt.See it in the glossary, L-1, O-1, E and TN. For a plain-language comparison of those categories, see which work visa fits.
What DHS proposes to change
DHS would remove the regulation and the related policy. Officers would decide each extension request case by case, without a built-in presumption in favor of the earlier approval. DHS says USCIS would also update the Policy Manual to match if the rule becomes final.
The department gives two main reasons. First, it says the burden of proving eligibility rests on the PetitionerThe person or employer who files a petition on behalf of a beneficiary, such as a relative filing an I-130 or an employer filing an I-140.See it in the glossary under section 291 of the Immigration and Nationality Act, and that the deference rule effectively shifts that burden to the officer, who must justify departing from a prior approval. Second, it says deference risks encouraging officers to put consistency and speed ahead of a full review, which could carry forward erroneous approvals.
How deference got here
The notice traces a back-and-forth history. USCIS issued a deference memorandum in April 2004, rescinded it in October 2017, and reinstated the policy in April 2021 through the Policy Manual. DHS then wrote it into regulation at 8 CFR 214.1(c)(5) in the December 2024 H-1B modernization final rule, 89 FR 103054.
How many petitions are affected
DHS counted 7,206,852 Form I-129 petitions from fiscal year 2014 through fiscal year 2025. Of those, 2,168,394, or about 30 percent, were potentially eligible for deference. In the most recent period when the policy was in effect, the number of eligible petitions rose from 195,547 in fiscal 2022 to 235,583 in fiscal 2025.
How to comment on the deference proposal
Comments must be filed through regulations.gov under docket USCIS-2026-0529. The notice sets the deadline at 30 days after Federal RegisterThe daily journal of the U.S. government where proposed and final rules, notices and executive orders are published.See it in the glossary publication, which is November 13. DHS says emails and letters sent to officials will not count as comments on the proposal.
The rule carries CIS No. 2870-26 and RIN 1615-AD26. Related background on petition types is in the TN professional visa entry and in our guide to changing jobs on an H-1B.