The U.S. Department of Homeland Security (DHS) has proposed a rule that would eliminate a longstanding U.S. Citizenship and Immigration Services (USCIS) practice of giving deference to prior approvals when adjudicating extension petitions for certain nonimmigrant workers. If finalized, the change could affect employers sponsoring workers in H-1B, L-1, O-1, TN, E, and other employment-based nonimmigrant classifications.
The proposed rule is scheduled for publication in the Federal Register on October 14, 2026, and will be subject to a 60-day public comment period before DHS considers whether to finalize the change.
Background
For many years, USCIS generally deferred to its prior eligibility determinations when adjudicating extension petitions involving the same employer, employee, and underlying facts. Under this approach, if USCIS had already approved a petition and there had been no material change in circumstances, officers typically relied on the original approval unless new information called eligibility into question.
The policy’s treatment has shifted over multiple administrations. During President Trump’s first term, USCIS moved away from broad deference and instructed officers to conduct more independent reviews of extension petitions. In 2021, the Biden administration restored the deference policy through agency guidance, citing consistency and predictability for employers and foreign national workers. The policy was later formally incorporated into federal regulations as part of the H-1B modernization rule that took effect in 2025.
Now, DHS proposes reversing course once again by removing the regulatory provision that requires officers to defer to prior approvals. The agency argues that each petition should be adjudicated independently and that petitioners should bear the burden of proving eligibility with every filing.
What Is DHS Proposing?
The proposed rule would remove the existing regulatory requirement that USCIS defer to prior approval decisions when reviewing extension requests. While adjudicators could still consider previous approvals, they would no longer be required to give those determinations special weight.
According to DHS, the change is intended to:
- Reinforce the petitioner’s burden of proof for every filing;
- Encourage independent review of each petition;
- Reduce the risk of perpetuating prior adjudicative errors; and
- Strengthen program integrity and fraud detection efforts.
Potential Impact
If finalized, employers may face increased scrutiny when filing extension petitions, even when there have been no material changes to the employee’s position or qualifications.
Potential consequences include:
- More Requests for Evidence (RFEs);
- More extensive documentation requirements;
- Longer adjudication timelines; and
- Increased legal and administrative costs associated with extension filings.
Employers may need to approach extension petitions much like initial filings, ensuring that eligibility is fully documented regardless of prior approvals.
Erickson Insights and Analysis
Erickson Immigration Group will continue monitoring developments and sharing updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or if you have case-specific questions.