On October 14, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM) that would eliminate deference to prior approvals for nonimmigrant worker extension petitions.
In December 2024, the DHS issued a final rule to the H-1B visa program that also codified the current deference policy. Under the policy, adjudicators are required to defer to prior USCIS determination of eligibility when adjudicating a Form I-129. Deference does not apply if a material error in the prior approval is discovered or if new material information or a material change impacts the petitioner’s or beneficiary’s eligibility. According to USCIS, the goal of codifying the deference policy was to provide greater clarity on how USCIS adjudicators approach petitions involving the same parties and underlying facts.
The new proposed rule removes the deference policy provision from the existing regulations. As such, USCIS adjudicators would no longer be required to give deference to prior approvals when reviewing these extension petitions if the rule is finalized as written. The DHS notes in the proposal that officers could still consider a prior approval where relevant, but they would no longer begin their review from a position of deference.
In the DHS’s view, the current deference policy effectively shifts the burden of proof from the petitioner to the adjudicating officer and raises the risk that an erroneous approval gets carried forward from one petition to the next. Eliminating it, the agency says, would make clear that the petitioner bears the burden of proof in every filing. The department also argues the change would strengthen fraud detection and program integrity and better protect U.S. workers. The agency expects more Requests for Evidence on extension petitions and acknowledges that petitioners may see longer adjudication times as a result.
The proposed rule is open for comment for 30 days with comments due on November 13, 2026. CUPA-HR is reviewing the proposal in detail and will provide further analysis in the coming weeks.