DHS now says that rule has backfired. The agency believes the practical effect has been to shift the burden onto USCIS officers to justify not approving an extension, rather than keeping the burden on the petitioner to prove continued eligibility. The proposed rule is published in the Federal Register at https://www.federalregister.gov/documents/2026/10/14/2026-20941/removing-deference-to-prior-uscis-determinations-of-eligibility.
The regulation was meant to simplify the process. When DHS first put it in place in December 2024, the agency said petitioners would "continue to have the burden to present all required and relevant evidence" and that "deference does not equate to a lack of USCIS review. But DHS now believes that is not what happened in practice. Instead, the agency says USCIS officers have prioritized keeping prior approvals consistent and operating efficiently over fully exploring all facts and evidence. Some petitioners, DHS believes, have interpreted the deference policy as reducing what they must do to show they remained eligible when seeking an extension.
The result, according to DHS, is a risk to program integrity. The deference regulation may have encouraged USCIS officers to scrutinize extension requests less carefully, potentially perpetuating erroneous prior approvals and allowing fraudulent or meritless petitions to slip through.
Who this affects
The proposed rule applies to nonimmigrant worker classifications that use Form I-129. For most of these, the filer is called the petitioner. For some classifications—the E and TN categories, for example—the filer is called the applicant. Either way, the change affects employers seeking to extend petitions for foreign workers and the workers themselves.
The regulation has applied most often when a petitioning employer seeks to extend a petition for an alien's employment or authorized stay in the United States under the same previously approved nonimmigrant worker classification. That is the core scenario the deference rule governed.
What the law says
Under the Immigration and Nationality Act, the burden of proving eligibility for all immigration benefits rests on the petitioner, applicant, or beneficiary. That is the law. DHS says the deference regulation has muddied that principle in practice. Removing 8 CFR 214.1(c)(5) would restore it.
DHS cites the statute directly: INA section 291, codified at 8 U.S.C. 1361. The agency also cites a prior USCIS Administrative Appeals Office decision, Matter of Chawathe, 25 I. & N. Dec. 369, 375 n.7 (USCIS AAO, 2010), which stated: "The burden of proving eligibility for the benefit sought remains entirely with the applicant."
What changes
If the rule is finalized, USCIS officers would review every extension request as if it were new. They would no longer defer to a prior approval. They would examine the facts and evidence in full each time. DHS says this change would ensure that USCIS officers fully review the facts and evidence in every case to ensure continued eligibility, promote more complete reviews, strengthen program integrity in how USCIS handles nonimmigrant worker benefits, and reduce the risk of perpetuating erroneous approvals.
The agency also says the change would support what it calls the Administration's broader efforts to better protect U.S. workers and more faithfully enforce the immigration laws enacted by Congress.
How to comment
This is a proposed rule. You must submit written comments by November 13, 2026, through the Federal eRulemaking Portal at https://www.regulations.gov, using DHS Docket No. USCIS-2026-0529. Submit comments in English, or provide an English translation. The electronic Federal Docket Management System will accept comments before midnight Eastern time at the end of that day.
Do not send comments by email, letter, hand delivery, or courier—DHS will not consider them and may not respond. DHS and USCIS also cannot accept comments on any form of digital media storage devices, such as CDs, DVDs, or USB drives. USCIS is not accepting mailed comments at this time.
If you cannot submit your comment through regulations.gov, contact the Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, by telephone at (240) 721-3000 for alternate instructions. That is not a toll-free call.
To help USCIS most, reference a specific portion of the proposed rule, explain why you recommend any change, and include data, information, or authority that supports your recommendation. DHS will post all submissions without change to the Federal eRulemaking Portal, including any personal information you provide. DHS may withhold information from public viewing that it determines may impact the privacy of an individual or is offensive.
What we don't know yet
The document does not specify how the change will affect processing times, whether USCIS will issue new guidance on how officers should handle extensions, or whether there will be a transition period. It also does not say whether the rule, if finalized, will apply retroactively to pending extension requests or only to those filed after the rule takes effect.
The regulation being removed has been in place since December 18, 2024. It was part of a broader set of changes called "Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers. DHS is now proposing to walk back one piece of that rule.
General information, not legal, immigration or tax advice. Confirm the details with Homeland Security Department before you act.
