USCIS Alert 2026: DHS Proposes Ending Deference to Prior Nonimmigrant Worker Petition Approvals

The U.S. Department of Homeland Security (DHS) has issued a proposed rule that would significantly change how USCIS reviews Form I-129 filings for nonimmigrant workers. Under the current regulation, USCIS is generally required to defer to a prior approval involving the same parties and underlying facts unless there was a material error, material change, or new adverse material information. The proposed rule would eliminate this deference requirement entirely. If finalized, USCIS officers would no longer be obligated to begin their review by presuming eligibility based on a prior approval. While officers could still consider a prior approval as one factor, each petition would effectively need to stand on its own merits. This represents a substantial shift in how extension petitions are adjudicated, potentially increasing the burden on employers and applicants to re-establish eligibility with each filing. For workers in the EB-3 pipeline who are maintaining nonimmigrant status — such as H-1B holders — this change could introduce greater uncertainty and risk at each extension stage. Employers sponsoring workers for permanent residence should be prepared to submit comprehensive evidence of eligibility with every I-129 filing rather than relying on the strength of a previous approval. The proposed rule is scheduled for Federal Register publication on October 14, 2026, and DHS is accepting public comments for 30 days following publication. Importantly, the existing deference regulation remains in full effect until and unless DHS finalizes any change. Stakeholders are encouraged to submit comments during the open period to influence the final rule.