DHS Proposes Eliminating Deference to Prior USCIS Approvals in Nonimmigrant Worker Petitions

On October 14, 2026, the Department of Homeland Security ("DHS") proposed eliminating the regulatory requirement that U.S. Citizenship and Immigration Services ("USCIS") generally defer to prior approvals when adjudicating subsequent Form I-129 petitions involving the same parties and underlying facts.

Under the existing framework, USCIS generally defers to a prior approval unless there is a material error, a material change in circumstances, or new material information adversely affecting eligibility.

The proposed rule would remove that requirement, allowing USCIS officers to independently assess eligibility in each petition, including extension requests. Although prior approvals could remain relevant, they would no longer receive mandatory deference.

Implications for Employers and Foreign National Workers

If finalized, the rule could increase scrutiny of extension petitions, even where the employer, position, and underlying circumstances remain unchanged.

Employers should be prepared to establish continued eligibility through complete, current, and well-documented submissions rather than relying principally on prior approvals.

Status of the Proposed Rule

The proposal is not yet effective. The public comment period is scheduled to close on November 13, 2026.

Our Office continues to monitor developments affecting employment-based immigration petitions and USCIS adjudication practices.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Readers should consult qualified immigration counsel regarding their specific circumstances.