What's Happening?
The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) published a proposed rule in the Federal Register on October 14, 2026, titled 'Removing Deference to Prior USCIS Determinations of Eligibility.' This proposal
aims to eliminate 8 CFR 214.1(c)(5), a regulation that currently requires USCIS officers to defer to a prior approval when adjudicating extensions of stay for work visas, provided the facts remain unchanged. If enacted, this change would mean that officers would no longer presume the correctness of a previous approval. Instead, each case would be evaluated based on its current record. While officers could still consider prior approvals as relevant information, they would not be bound by them. The proposed rule would affect all Form I-129 filings, including H-1B, L-1, E-1, E-2, O-1, and TN visas. DHS estimates this change would lead to approximately 6,044 additional Requests for Evidence (RFEs) annually, with RFE cases typically taking a median of 76 days to process compared to 12 days for those without RFEs.
Why It's Important?
This proposed rule signifies a significant shift in how USCIS processes extensions for various non-immigrant work visas, impacting thousands of foreign workers and U.S. employers. By removing the deference rule, USCIS aims to align regulations with the legal principle that places the burden of proving eligibility on the petitioner, while also prioritizing system integrity and protecting U.S. workers. However, the practical consequence for petitioners will likely be increased administrative burden and longer processing times due to the anticipated rise in RFEs. Businesses relying on foreign talent may face greater uncertainty and delays in retaining their workforce, potentially affecting operational continuity and planning. Foreign workers, in turn, could experience prolonged periods of anxiety regarding their immigration status and employment authorization. The change could also lead to higher legal costs for employers as they prepare more comprehensive evidence packages for each extension application.
What's Next?
The proposed rule is currently open for public comment until November 13, 2026, through regulations.gov under docket USCIS-2026-0529. During this period, stakeholders, including businesses, immigration attorneys, and affected individuals, can submit their feedback. It is important to note that the rule is only a proposal, and current regulations remain in effect. However, individuals planning to extend their work or investor visas in the coming months are advised to prepare a complete evidence package, as if filing for the first time, and to allow for additional processing time in anticipation of potential RFEs. The final version of the rule, if implemented, may differ from the current proposal. The outcome of the public comment period and subsequent USCIS decision will determine the future landscape for work visa extensions.
Beyond the Headlines
The proposed elimination of the deference rule reflects a broader policy objective within DHS to enhance scrutiny and ensure compliance in immigration processes. While framed as a measure to improve system integrity, it also underscores a more cautious approach to immigration benefits, potentially making it more challenging for foreign workers to maintain their status in the U.S. This move could be seen as part of a larger effort to re-evaluate and tighten immigration policies, potentially influencing future legislative or regulatory actions. The increased administrative burden on USCIS itself, with thousands of additional RFEs, could strain agency resources and further contribute to processing backlogs. The long-term implications might include a shift in U.S. competitiveness for global talent if the process of retaining skilled foreign workers becomes excessively cumbersome.
