On October 14, 2026, the Department of Homeland Security (DHS) and U.S. Citizenship & Immigration Services (USCIS) published a proposed rule that would end USCIS’s practice of generally deferring to prior eligibility determinations when adjudicating nonimmigrant extension petitions.  

DHS states that eliminating the deference requirement would strengthen program integrity, facilitate a more comprehensive review of extension petitions, and support the administration’s stated policy priorities concerning the protection of U.S. workers. 

The proposal is open for public comment and has not yet taken effect. DHS will accept comments through November 13, 2026, before determining whether to issue a final rule.  

If finalized, the change would impact Form I-129 extension requests for many employment-based nonimmigrant categories including H-1B, L-1, O-1, TN, E, and others.  

What Would Change? 

Current regulations instruct USCIS officers to defer to prior approvals involving the same employer, employee, and underlying facts unless there has been a material error, material change in circumstances, or new adverse information affecting eligibility. The proposed rule would remove that deference standard, allowing officers to independently evaluate each extension petition and determine eligibility based on the evidence submitted with the filing. 

Potential Impact on Employers and Foreign National Employees 

If finalized, the rule could result in: 

• Increased scrutiny of extension petitions, even where USCIS previously approved the same employer, employee, and position; 
• More Requests for Evidence (RFEs); 
• Longer processing times; and 
• Greater emphasis on submitting comprehensive supporting documentation with extension filings to demonstrate continued eligibility.  

Importantly, the proposal would not change the substantive eligibility requirements for H-1B or other nonimmigrant classifications. Rather, it would change how USCIS reviews extension petitions by removing the requirement that officers defer to prior approvals involving the same parties and facts. Employers and employees who continue to meet all applicable requirements should remain eligible for approval.  

What Employers Should Do 

While no immediate action is required, employers should continue to maintain thorough documentation supporting their nonimmigrant workforce and be prepared for the possibility that future extension filings may require more robust evidence of continued eligibility than in the past. 

If you have questions regarding how the proposed rule may affect your employees or immigration matters, please contact a Foster LLP attorney. Foster LLP will continue to monitor developments and provide updates as additional information becomes available via Immigration Updates©, articles, and blogs on our website at www.fosterglobal.com