If you or your employer will ever need to extend a work visa in the United States, this week matters. The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) have proposed removing the rule that tells USCIS officers to defer to a prior approval when an employer files to extend a worker's status — and public comments close Friday, November 13, 2026.
What is deference today? Under the current regulation, 8 CFR 214.1(c)(5), when USCIS decides a Form I-129, Petition for a Nonimmigrant Worker, involving the same parties and the same underlying facts as an earlier approved petition, officers generally give deference to that earlier approval — unless there was a material error, a material change, or new material information affecting eligibility.
What would change? The proposed rule, titled "Removing Deference to Prior USCIS Determinations of Eligibility," published October 14, 2026 in the Federal Register (91 FR 65119), would delete 8 CFR 214.1(c)(5) and leave it "[Reserved]." If finalized, an extension for the same employer, same worker, and same job could be reviewed completely fresh, as if USCIS had never approved it before — with full evidence required again on every point.
Who is affected? Every Form I-129 extension: H-1B, H-1B1, L-1, O-1, TN, E-3, E and P categories, among others. DHS estimates about 208,429 petitions a year would lose the benefit of deference.
What has NOT changed: This is a proposal only — not a final rule. Deference still applies today, and nothing changes unless DHS publishes a final rule after the comment period and sets an effective date.
Related deadline just passed: A separate DHS proposal to eliminate the 60-day grace period for laid-off H-1B and other workers drew more than 31,000 public comments before its November 10 deadline, according to reports published November 11 — a sign of how closely workers and employers are watching these changes.
How to comment before the deadline: Anyone can comment — workers, employers, families, and organizations. Go to regulations.gov, search for DHS Docket No. USCIS-2026-0529, and submit your comment before midnight Eastern Time on Friday, November 13, 2026. Emailed or mailed comments are not accepted for this docket; comments must go through regulations.gov.
Practical advice: If your extension is coming up in the next year, talk to your employer or an immigration lawyer now about keeping complete records of the original approval and the evidence behind it. Whether or not this proposal is finalized, a complete file is your best protection.
Sources: Federal Register, "Removing Deference to Prior USCIS Determinations of Eligibility," 91 FR 65119 (October 14, 2026); Reddy Neumann Brown PC analysis of the proposed rule; VisaVerge coverage of the November 13 comment deadline. This article is general information, not legal advice.
Post a Comment