October 25, 2026 | IEU News

Status: Proposed rule — not currently in effect

For many H-1B and L-1 workers in the United States, extending an existing work visa petition has traditionally been more straightforward when the employer, employee, and underlying job circumstances remain unchanged. A previous USCIS approval generally receives deference, meaning immigration officers are instructed to give weight to the agency’s earlier eligibility determination unless there is a valid reason to reconsider it.

That could change.

On October 14, 2026, the U.S. Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), published a Notice of Proposed Rulemaking (NPRM) proposing to eliminate the regulatory requirement for deference to previous eligibility determinations in certain nonimmigrant worker petitions.

The proposed change could affect employers and professionals filing extensions through Form I-129, including Indian nationals working in H-1B and L-1 classifications.

Importantly, this is only a proposal. The current deference regulation remains in effect, and no new rule has taken effect.

What Is the Current USCIS Deference Policy?

Under existing regulation 8 CFR 214.1(c)(5), when USCIS reviews a Form I-129 petition involving the same petitioner, the same beneficiary, and the same underlying facts, officers generally must defer to their earlier eligibility determination.

There are three main exceptions:

• Material error: The earlier approval contained a significant error.
• Material change: The circumstances or eligibility requirements have changed significantly.
• New adverse information: New, material information has emerged that adversely affects eligibility.

For example, consider an H-1B employee who has worked for the same employer for three years. The employer files an extension for the same position, with substantially unchanged duties, qualifications, and other relevant facts.

Under the current policy, USCIS generally gives deference to the previous approval unless one of the applicable exceptions exists.

However, deference does not guarantee approval. Employers must still establish continued eligibility, comply with applicable requirements, and provide supporting evidence.

The policy has changed several times over the years. It existed through agency guidance beginning in 2004, was rescinded in October 2017, reinstated in April 2021, and formally incorporated into federal regulations in December 2024.

What Exactly Is DHS Proposing?

DHS proposes to remove 8 CFR 214.1(c)(5), eliminating the regulatory instruction that USCIS officers generally defer to previous eligibility determinations involving the same parties and facts.

If finalized, immigration officers would no longer be required to begin an extension review from a position of deference to an earlier approval.

Instead, USCIS could reassess the submitted evidence and eligibility requirements without that regulatory presumption.

This could mean that even when an employer and employee have remained in the same circumstances, the extension petition may receive a more extensive eligibility review.

An important distinction: Removing deference would not prohibit USCIS from considering previous approvals. Officers could still consider earlier decisions when relevant. What would disappear is the requirement to give those approvals deference at the start of the review.

The proposal would not automatically invalidate previously approved petitions or immediately change a worker’s immigration status.

Why Does DHS Want to Remove Deference?

DHS identifies several reasons for proposing this change.

1. Reinforcing the petitioner’s burden of proof

Under Section 291 of the Immigration and Nationality Act, the petitioner or applicant bears the burden of establishing eligibility for the immigration benefit requested.

DHS argues that the current deference requirement has the practical effect of placing additional responsibility on USCIS officers to justify departing from a previous approval.

The department believes removing deference would better reinforce the requirement that petitioners demonstrate eligibility in every filing.

2. Allowing more extensive examination of extension petitions

DHS argues that mandatory deference may discourage officers from requesting additional documentation or closely examining eligibility when an earlier approval exists.

Without the requirement, officers could conduct more extensive reviews when they consider them necessary.

3. Strengthening program integrity

DHS also cites concerns about erroneous approvals and the possibility that some petitioners could rely on previous decisions to obtain subsequent approvals despite eligibility problems.

The agency analyzed selected historical data involving Requests for Evidence (RFEs) and fraud or noncompliance findings.

According to DHS’s analysis, the RFE rate increased by approximately 2.9 percentage points relative to a comparison group after the deference policy was rescinded in 2017.

However, DHS acknowledges that other factors may have contributed to the difference.

The agency also states that historical denial rates did not show a statistically significant difference between periods with and without deference.

Separately, DHS cited higher combined fraud and noncompliance findings during selected H-1B and L-1A administrative and targeted site visits in years when deference was in effect.

These findings do not establish that deference itself caused higher fraud rates. DHS acknowledges that other factors may have contributed to the observed differences.

Which Visa Categories Could Be Affected?

The proposed removal of deference would affect benefit requests filed using Form I-129, Petition for a Nonimmigrant Worker.

Relevant nonimmigrant classifications include:

• H-1B and H-1B1: Specialty occupation workers
• L-1A and L-1B: Intracompany transferees
• O-1 and O-2: Individuals with extraordinary ability or achievement and certain accompanying personnel
• E-1, E-2 and E-3: Treaty-related classifications and Australian specialty occupation workers
• TN: Eligible Canadian and Mexican professionals
• P-1, P-2 and P-3: Certain athletes, entertainers and performers, including related P-1S, P-2S and P-3S support classifications
• R-1: Religious workers
• Q-1: International cultural exchange participants
• H-2A, H-2B and H-3: Certain temporary and trainee classifications

The proposal concerns the deference policy applied to Form I-129 adjudications.

Dependent extensions filed on Form I-539, including many H-4 applications, are not directly governed by this specific deference provision. They remain subject to their own applicable eligibility requirements.

How Many Petitions Could Be Affected?

DHS provides historical Form I-129 data covering fiscal years 2014 through 2025.

During that period:

• Approximately 7.2 million Form I-129 petitions were filed.
• Approximately 2.17 million petitions, or 30%, were potentially eligible for deference.
• During fiscal years 2022–2025, an average of approximately 208,429 petitions annually were potentially eligible for deference.

These figures represent the broader Form I-129 petition population.

They do not mean that 30% of petitions were filed by Indian nationals. The proposed rule does not establish an India-specific share of affected petitions.

Nevertheless, the proposed change is particularly relevant to Indian professionals employed under H-1B and L-1 classifications, as well as their sponsoring employers.

Could H-1B Extensions Face More RFEs and Longer Processing Times?

Potentially, yes.

DHS estimates that eliminating the deference requirement could generate approximately 6,044 additional Requests for Evidence annually, based on its historical analysis and assumptions.

This represents an estimated 2.9-percentage-point increase in the RFE rate for the population used in its calculations.

An RFE is a USCIS request for additional documentation before making a decision on a petition. Receiving one does not automatically mean the petition will be denied.

DHS estimates approximately $133,987 in additional annual RFE-response preparation costs across all affected petitioners combined.

This is not a fee charged to individual H-1B workers or employers. It is the agency’s aggregate estimate of additional preparation-related costs under the assumptions used in its analysis.

DHS also acknowledges potential consequences that are more difficult to quantify, including:

• Additional time spent gathering supporting documentation.
• Greater use of employer legal or human-resources resources.
• Possible longer adjudication timelines.
• Increased uncertainty concerning continued employment and extension approvals.

These are projected effects, not outcomes that have already occurred.

DHS believes a more comprehensive review process could improve eligibility determinations and help identify errors or inconsistencies. Whether the proposed approach would produce those outcomes remains to be seen.

What Could This Mean for Indian Professionals and Families?

For Indian professionals working in the United States, the potential consequences extend beyond immigration paperwork.

Consider an H-1B employee who has already received USCIS approval for a particular role and now needs another extension with the same employer.

Under the current deference regulation, the earlier eligibility determination generally receives deference when the parties and relevant facts remain the same.

If the proposal is finalized, USCIS could review the eligibility requirements more extensively without being required to begin from that position of deference.

That may create additional documentation requirements, delays, or uncertainty for some petitioners.

Employers may need to maintain more detailed supporting records concerning job duties, qualifications, business operations, and eligibility requirements.

Workers could also experience uncertainty when coordinating extension approvals with employment, travel, or dependent-family arrangements.

However, the proposal does not automatically cancel existing H-1B approvals, terminate H-4 status, or require workers and their families to leave the United States.

Those immigration matters continue to be governed by their applicable laws, regulations, and individual circumstances.

What Has Not Changed?

As of October 25, 2026:

• The proposed rule is not final or effective.
• The existing regulatory deference requirement under 8 CFR 214.1(c)(5) remains in place.
• USCIS may continue giving deference to prior eligibility determinations under the existing rules, subject to their exceptions.
• Employers and petitioners must continue demonstrating eligibility for immigration benefits.
• The proposal does not itself change existing filing fees.
• Previously approved petitions are not automatically invalidated by publication of the proposal.
• Workers do not lose immigration status merely because this proposed rule has been published.

If DHS issues a final rule, its final provisions, implementation date, and any subsequent guidance will need to be reviewed.

What Should Employers and Visa Holders Do Now?

There is no need to assume the proposed change has already become law.

However, employers and workers can take reasonable steps to understand the potential implications.

Employers may find it useful to maintain complete documentation supporting continued eligibility, particularly for workers whose employment circumstances have evolved since an earlier approval.

Employees can stay informed about upcoming extension filings and work with their employers or immigration representatives to understand the evidence required for their specific petitions.

Families with dependent visa holders should remember that the principal worker’s immigration circumstances may affect related immigration planning, even though dependent applications are not directly governed by this specific deference regulation.

Immigration matters are highly fact-specific, and individuals should consult qualified legal professionals when circumstances require personalized guidance.

Can the Public Comment on This Proposal?

Yes.

DHS is accepting public comments until November 13, 2026, before midnight Eastern Time.

The proposal is listed under:

Docket Number: USCIS-2026-0529
Federal Register Document: 2026-20941
Regulation Identifier Number: 1615-AD26

Comments can be submitted through the federal rulemaking portal:

Submit a Comment — Regulations.gov

Employers, workers, legal professionals, community organizations, and other interested individuals may submit relevant information and perspectives.

DHS will consider public comments as part of the rulemaking process before deciding whether to finalize, revise, or withdraw the proposal.

What Happens Next?

DHS may review the submitted comments and decide whether to proceed with a final regulation.

Until a final rule becomes effective, existing regulatory requirements remain applicable.

For Indian professionals and employers, the most important takeaway is that USCIS has proposed removing mandatory deference to previous eligibility approvals—but that change has not yet taken effect.

If finalized, the proposal could make some nonimmigrant worker extension reviews more documentation-intensive and potentially less predictable.

IEU News will continue following official developments concerning this rulemaking.

Official Sources

1. Federal Register — Removing Deference to Prior USCIS Determinations of Eligibility, October 14, 2026
2. U.S. Government Publishing Office — Official Federal Register Text, 91 FR 65119
3. Regulations.gov — Docket USCIS-2026-0529

This article provides general information and does not constitute immigration or legal advice. The proposed rule has not taken effect. Individual immigration matters should be evaluated using current official requirements and qualified professional guidance.