On October 14, 2026, the Department of Homeland Security published a notice of proposed rulemaking that would remove 8 CFR 214.1(c)(5), the regulation that generally requires U.S. Citizenship and Immigration Services (USCIS) to give deference to a prior approval when adjudicating a Form I-129 extension involving the same parties and the same underlying facts. See 91 Fed. Reg. 65119 (Oct. 14, 2026).
This is a proposed rule only. It is not in force. Comments must be submitted on or before November 13, 2026.
Under the current regulation, when an employer files an extension for the same worker in the same classification with the same facts, USCIS generally must defer to the prior eligibility determination unless there was a material error in the prior approval, a material change in circumstances, or new material information. The proposal would delete that deference instruction. DHS states that the change would better align adjudications with the statutory burden of proof on the petitioner, applicant, or beneficiary, and would strengthen review of nonimmigrant worker extensions.
If finalized as proposed, routine H-1B, L-1, E, and TN extensions could face fuller re-adjudication on the current record. Employers should expect a higher chance of Requests for Evidence and closer scrutiny of specialty occupation, managerial or executive capacity, qualifying corporate relationships, and wage or itinerary evidence—even where nothing material has changed since the last approval. Prior approval would remain relevant evidence, but officers would no longer be required to start from a position of deference.
Employers should treat the NPRM as a planning signal, not a change in today’s filing rules. Continue documenting eligibility as if each extension must stand on its own, keep prior approval notices and supporting exhibits organized for reuse, and watch the Federal Register docket for a final rule. Until a final rule takes effect, 8 CFR 214.1(c)(5) remains the governing regulation. If your organization is reviewing how this development may affect pending or planned filings, please contact our office.
