DHS Proposes Ending Deference for I-129 Visa Extensions

The U.S. Department of Homeland Security (DHS) has proposed a significant change that could affect how U.S. Citizenship and Immigration Services (USCIS) handles extensions for certain nonimmigrant work visas. This proposal aims to end the practice of “deference” to prior eligibility decisions when reviewing Form I-129 petitions for extensions. This means USCIS officers may not automatically accept previous approvals as proof of continued eligibility.

This proposed rule, published on October 14, 2026, applies to a range of visa types beyond just the H-1B. It includes petitions for L-1, O-1, TN, E, and P workers. The change could impact employers and foreign workers seeking to extend their stay in the U.S. under these classifications. The current regulation remains in effect while the DHS considers public comments, which are due by November 13, 2026.

Understanding Deference in Visa Petitions

Currently, a regulation allows USCIS officers to defer to a prior eligibility finding when reviewing a petition. This means if a petitioner and the underlying facts are the same as in a previous approval, the officer generally accepts that prior decision. There are exceptions, such as if the earlier decision had a clear error, circumstances have changed significantly, or new negative information has surfaced.

The proposed change would remove this obligation for officers to defer. While they could still consider a prior approval, they would not be required to give it controlling weight. This shifts the responsibility back to the petitioner to fully prove their eligibility for each new filing, even if it’s an extension with the same employer.

Why DHS Wants to End Deference

The DHS suggests that the current deference policy can sometimes lead USCIS officers to prioritize consistency and speed over a thorough examination of the evidence. They argue that employers and workers might have come to view prior approvals as a guarantee for extensions, potentially reducing their own efforts to demonstrate ongoing eligibility. The department believes that removing deference will encourage a closer review of each petition, potentially uncovering earlier errors or indicators of fraud.

The DHS has pointed to data from site visits for H-1B and L-1A cases. They noted a higher percentage of non-compliance or fraud findings during periods when a deference policy was in effect. While acknowledging that other factors could be involved, the DHS considers deference to be a contributing element. The proposed change aims to ensure that each petition is evaluated on its own merits, based on current evidence.

Impact on Employers and Workers

If adopted, this proposal could lead to more requests for evidence (RFEs) for Form I-129 extensions. The DHS estimates that, on average, a petition receiving an RFE took an additional 64 calendar days to process in fiscal years 2022 through 2025. This could mean longer wait times for employers and workers.

For employers, it will be more important than ever to prepare extension petitions carefully. This includes comparing the employee’s current duties, worksite, and compensation with the information in the original petition. Any differences should be clearly explained and supported by new evidence. While a prior approval is still relevant, it will not be sufficient on its own to guarantee an extension.

Workers whose authorized stay is nearing its end may be able to continue working for up to 240 days after their authorized stay expires if they have filed a timely extension request with the same employer. However, longer processing times could bring cases closer to this limit. For those needing faster decisions, premium processing might be an option to consider.

Visa Types Affected by the Proposal

The proposed rule affects all benefit requests filed using Form I-129. This form is used for various nonimmigrant classifications, including:

• H-1B: For workers in specialty occupations.
• L-1: For intracompany transferees.
• O-1: For individuals with extraordinary ability.
• TN: For Canadian and Mexican professionals.
• E: For treaty traders and investors.
• P: For athletes, artists, and entertainers.

It is important to note that this proposal does not cover extensions for dependents filed using Form I-539, nor does it directly apply to visa applications made at consulates abroad or inspections at U.S. borders. The focus is specifically on extensions and some amendment petitions filed with USCIS using Form I-129.

How to Submit Comments

The DHS is accepting public comments on this proposed rule until November 13, 2026. Interested parties must submit their written comments through the official government portal, regulations.gov. Comments should clearly identify the DHS Docket No. USCIS-2026-0529. Email or mailed submissions will not be considered official comments. For those unable to use the online portal, assistance can be sought by calling (240) 721-3000 for alternative submission instructions. The DHS has not yet announced a date for when a final rule might be issued.

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