DHS Proposes Scrapping USCIS Deference to Prior H-1B and Other Work Visa Approvals

What DHS Is Proposing to Remove#

The operative text of the proposal is narrow but consequential: DHS wants to remove 8 CFR 214.1(c)(5) from the Code of Federal Regulations. That single provision currently instructs USCIS officers to defer to a prior approval when adjudicating a Form I-129 extension request involving the same petitioner, the same beneficiary, and the same underlying facts, unless the agency can point to a material error, a material change, or new material information that undercuts eligibility.

DHS frames the fix as a matter of aligning regulatory text with the Immigration and Nationality Act's existing allocation of the burden of proof, which places that burden on the petitioner, applicant, or beneficiary rather than on the government. The agency argues that in practice, the deference regulation flips that arrangement by forcing officers, not petitioners, to justify any departure from a previous decision.

Who Would Feel the Change#

The proposal is explicit about its reach: it would apply to all benefit requests filed using Form I-129, Petition for a Nonimmigrant Worker. That form covers a wide swath of the employment-based temporary visa system, including H-1B specialty occupation workers, L-1 intracompany transferees, O-1 workers of extraordinary ability, TN professionals under the USMCA, E treaty traders and investors, H-2 temporary workers, and P, Q and R classifications covering athletes, entertainers, exchange visitors and religious workers.

The preamble singles out petitioning U.S. employers and the nonimmigrant workers named on those petitions as the groups directly affected, since they are the parties who currently benefit from an officer's deference to a prior determination when nothing about the job, the employer, or the facts has changed.

How Deference Became Settled Practice#

Deference has a specific regulatory lineage that the proposal traces in detail. USCIS policy guidance had long instructed officers to defer to prior determinations involving the same parties and facts, while still permitting denial of a subsequent petition if eligibility was not actually demonstrated. Under that guidance, an officer declining to defer was required to acknowledge the earlier approval in any denial, Request for Evidence, or Notice of Intent to Deny, and to give the petitioner a chance to respond.

That practice was restored as agency guidance by the Biden administration in 2021 after having been curtailed during the first Trump administration. It was then written directly into the Code of Federal Regulations in December 2024, through the Modernizing H-1B Requirements final rule, which created the current 8 CFR 214.1(c)(5).

The 2024 Rule's Own Words, Reread#

What makes this proposal notable is that DHS is not simply disagreeing with a prior administration's policy choice; it is reversing a position the agency itself took less than two years ago. In the December 2024 rulemaking that codified deference, DHS stated that petitioners would continue to carry the burden to present all required and relevant evidence establishing eligibility, and separately stated that deference does not equate to a lack of USCIS review of the petition.

DHS now says the practical operation of its own 2024 rule diverged from those stated intentions. The agency's current view is that requiring officers to find a material error or change before deviating from a prior approval effectively builds in a default assumption that the earlier decision was correct, shifting the practical burden of proof away from the petitioner and onto the adjudicator.

Where Officer Discretion Would Change#

If the regulation is removed, the procedural scaffolding built around deference goes with it. The requirement that an officer declining to defer must flag the prior approval, articulate a specific reason tied to material error or changed circumstances, and obtain supervisory sign-off before deviating would no longer apply as a matter of regulation, because there would be no deference standard left to deviate from.

In its place, officers adjudicating an extension would approach the case the same way they approach an initial petition: reviewing the full evidentiary record for continued eligibility under the applicable classification, without a regulatory instruction to weigh the fact of a prior approval in the petitioner's favor.

Narrower Point: The 30-Day Comment Clock#

The pre-publication version of the rule leaves the exact comment deadline as a placeholder to be inserted once the document formally runs in the Federal Register, but the rule's own text fixes the length of the window at 30 days after that publication date. Because the document is scheduled for Federal Register publication on October 14, 2026, that places the comment deadline in mid-November 2026, calculated from the actual publication date rather than the October 13 pre-publication release.

The Burden-of-Proof Argument DHS Is Making#

DHS grounds its legal rationale in Immigration and Nationality Act section 291, which the agency reads as placing the burden of proving eligibility for any immigration benefit squarely on the party seeking it. The agency also invokes administrative precedent holding that the burden of proving eligibility for the benefit sought remains entirely with the applicant and never shifts to USCIS.

Applying that framework to extensions, DHS argues that a prior approval should not function as a form of built-in credit toward a later filing. An extension request follows a previous finding of eligibility, but DHS maintains that finding does not relieve the petitioner of re-establishing eligibility each time, and that officers should not need to clear a higher bar, identifying a material error or change, before scrutinizing the current record fully.

What Stays the Same for Now#

Nothing in the proposal is self-executing. The current regulatory text of 8 CFR 214.1(c)(5) remains in force, meaning USCIS adjudicators are still bound by the existing deference standard while the comment period runs and DHS evaluates the record. No extension petition pending today is adjudicated under the proposed standard, and the rule carries no effective date because final rules, not proposed ones, specify when regulatory changes take legal effect.

The proposal is also distinct from other pending H-1B-related rulemakings working their way through DHS, including a separate proposal addressing the 60-day grace period available to H-1B workers after a layoff and a separate proposal concerning H-1B cap-related fees. Each of those proceedings carries its own docket and comment timeline, and none is incorporated into this deference-specific notice.

Open Questions Heading Into the Comment Period#

DHS's preamble includes a section acknowledging that some U.S. employers and nonimmigrant workers may raise reliance interests built up under the current deference framework, though the full substance of that discussion was not available in the excerpted record reviewed for this article. How DHS ultimately addresses those reliance arguments, whether through a phase-in period, an exemption for currently pending extensions, or no transition relief at all, will depend on what the agency decides after reviewing public comments.

It is also not yet clear whether this rule, if finalized, will draw the kind of legal challenges that have followed other recent H-1B-related regulatory changes, or how the various concurrent rulemakings touching the H-1B program will interact once each reaches a final stage.