DHS Proposes to End USCIS Deference to Prior I-129 Approvals
USCIS has proposed rescinding 8 CFR 214.1(c)(5), forcing a fresh eligibility determination on roughly 208,000 H-1B, L-1 and other I-129 petitions a year, with comments due 13 November 2026.
On 14 October 2026, DHS/USCIS published a proposed rule (91 FR 65119; Docket No. USCIS-2026-0529) that would delete 8 CFR 214.1(c)(5), the regulation requiring officers to defer to a prior eligibility determination for the same parties and underlying facts absent material error, change or new adverse information. Officers could still weigh earlier approvals, but would no longer start from a position of deference, and DHS would drop the guidance requiring supervisory sign-off to decline deference. The same day DHS issued a final rule ending automatic extensions of most EADs, compounding exposure for H-4 dependents.
DHS estimates deference currently covers about 208,429 petitions annually and projects roughly 6,044 additional RFEs; petitions receiving an RFE ran a median of 64 days longer. Because work authorization beyond 240 days already depends on timely filing, longer adjudication raises stop-work risk for same-employer extensions and could increase reliance on premium processing.
For clients with substantial H-1B, L-1, O-1 or TN populations, the operational point is that extension filings must be built as standalone evidentiary records: reconcile duties, worksites, pay and corporate structure across prior petitions, LCAs and visa applications, file well ahead of need, and price in RFE and premium-processing costs. The 13 November 2026 comment deadline is the next date to watch; deference practice remains in effect until a final rule.