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| Rule | Removing Deference to Prior USCIS Determinations of Eligibility (proposed rule) |
|---|---|
| Agency | U.S. Citizenship and Immigration Services, DHS |
| Published | 14 October 2026 (91 FR 65119) |
| Status | Proposed. Not in effect. |
| Comments due | 13 November 2026, DHS Docket No. USCIS-2026-0529 |
| Regulation | 8 CFR 214.1(c)(5) |
What DHS is proposing
On 14 October 2026 DHS and USCIS published a notice of proposed rulemaking titled Removing Deference to Prior USCIS Determinations of Eligibility. It proposes to remove 8 CFR 214.1(c)(5).
That regulation currently tells USCIS officers to give deference to a prior determination of eligibility when adjudicating a request on Form I-129 that involves the same parties and the same underlying facts. Under it, USCIS must generally defer to the earlier approval unless there was a material error, a material change, or new material information that adversely impacts eligibility. The rule says this most often applies when an employer seeks to extend a petition for a worker's employment or stay in the same previously approved nonimmigrant worker classification.
The proposal is not final. The current regulation stays in place unless and until DHS publishes a final rule.
The detail
- Scope: the change would apply to all benefit requests filed on Form I-129, Petition for a Nonimmigrant Worker.
- What remains: the rule states that the proposal would not prohibit officers from considering a prior approval where relevant. It would remove the requirement that officers begin from a position of deference.
- DHS's reasons: DHS says the deference regulation in practice shifts the burden of proof from the petitioner to the officer, may limit officers' fact-finding, and may weaken program integrity. It cites section 291 of the INA, which places the burden of proof on the petitioner.
- Alternative rejected: DHS considered rewording the rule so that USCIS "may give deference in its discretion", but did not propose it, saying it would likely create unnecessary confusion.
- Comments: due on or before 13 November 2026 through regulations.gov under DHS Docket No. USCIS-2026-0529. The rule says mailed comments are not being accepted.
How the deference policy has moved
The rule sets out the history. USCIS first issued deference guidance in April 2004. It rescinded that guidance in October 2017, reinstated a deference policy in the USCIS Policy Manual in April 2021, and DHS codified it at 8 CFR 214.1(c)(5) in December 2024 through the H-1B modernisation final rule (89 FR 103054). The proposal would reverse that codification. DHS acknowledges that some of its statements now represent a shift from what it said in the 2024 rule.
What DHS expects the effect to be
The figures below are DHS estimates from the rule. Lexverse has not independently verified them.
- An average of 208,429 Form I-129 petitions a year (FY 2022 to FY 2025) were eligible for deference, about 30 percent of all I-129 petitions.
- DHS estimates that removing deference may increase the RFE rate by 2.9 percentage points, or about 6,044 additional RFEs a year, at a cost to petitioners of approximately $133,987 a year.
- DHS found no corresponding change in denial rates when it applied the same analysis.
- Over FY 2022 to FY 2025, petitions with an RFE took 64 days longer to process than those without, which DHS uses to describe longer adjudication times as an unquantified cost.
- DHS reports that the combined percentage of non-compliance or fraud found at H-1B sites visited was 22.39 percent for FY 2022 to FY 2025, compared with 16.77 percent for FY 2018 to FY 2020, and acknowledges that factors other than deference may have contributed.
What is and is not affected
DHS states that removing deference does not substantively change eligibility for any benefit. The rule says employers could continue employing nonimmigrant workers, and workers could continue working, so long as they establish continued eligibility and obtain the necessary approvals. Nothing changes today: the proposal has no legal effect until a final rule is published.
The next step to watch is a final rule, which would state the effective date and respond to the comments received. Readers with an extension coming up can discuss the evidence for continued eligibility with a US-licensed immigration attorney. Lexverse supports firms with US immigration drafting.
Official sources and documents
- Removing Deference to Prior USCIS Determinations of Eligibility, proposed rule (Federal Register, 91 FR 65119) — Federal Register, 14 October 2026
- Proposed rule: official PDF on govinfo.gov (PDF) PDF — U.S. Government Publishing Office, 14 October 2026
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