2026 USCIS Policy Alert: DHS Proposes Removing Deference for E-2, L-1, O-1 Extensions

On October 14, 2026, the Department of Homeland Security (DHS) published a proposed rule titled 'Removing Deference to Prior USCIS Determinations of Eligibility.' The rule targets the existing regulatory provision under 8 C.F.R. § 214.1(c)(5), which currently directs USCIS officers to begin from a position of deference when reviewing extension petitions involving the same parties and underlying facts as a previously approved case. The proposal would affect a wide range of nonimmigrant visa categories, including E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P, Q-1, R-1, and TN. Under the current framework, USCIS may only depart from a prior approval when there is material error, a material change in circumstances, or new adverse information. DHS argues that, in practice, this deference has constrained officer discretion in ways beyond its original intent. Importantly, the proposed change would not alter any substantive eligibility standards—investment thresholds, L-1 specialized knowledge tests, or O-1 evidentiary criteria remain unchanged. Officers would still be permitted to consider prior approvals as relevant context, but would no longer be required to start from a presumption of continued eligibility. The burden of proof under INA § 291 has always rested with the petitioner and this rule does not change that. This proposal is part of a longer policy history: deference was first adopted in 2004, scaled back in 2017, restored in 2021, and formally codified in a December 2024 final rule effective January 2025. The current NPRM does not specify an effective date or transition provisions for pending petitions. For immigration practitioners and applicants in categories like E-2, L-1, and O-1, this means extension filings should be prepared with the same evidentiary rigor as initial petitions. Public comments on the proposed rule are due by November 13, 2026.