Renewals to be Considered New Applications: USCIS Proposes to Eliminate Deference for Form I-129 Extension Petitions
Employers have been accustomed to uneventful renewals for their foreign workers; however, they soon may find themselves in a very different position. The United States Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) have released a proposed rule that would end the deference that USCIS officers previously gave to earlier eligibility decisions when they review extension petitions filed on Form I-129. DHS slated the proposal for publication in the Federal Register on October 14, 2026, which opens a 30-day window for public comment.
What is the deference policy?
Today, when employers request an extension (also referred to as a renewal) for the same worker based on the same underlying facts, USCIS officers generally rely on the earlier approval. Under the current policy, officers may depart from that approval only where there is:
A material error in the earlier approval;
A material change in circumstances; or
New material information that undermines eligibility.
DHS adopted this policy to bring consistency and efficiency to the adjudication process.
What would change?
The proposed rule would direct officers to treat every extension petition as a new petition and to weigh it independently. This has real consequences for employers, such as:
An earlier approval would no longer carry weight when USCIS adjudicates an extension;
Petitioners would continue to shoulder the burden of proving eligibility in every filing;
Officers could revisit each eligibility requirement anew; and
Employers may need to submit more robust evidence with each extension, either in initial filings or in response to a Request for Evidence, which may prolong and complicate the extension process.
Who would feel the impact?
The proposal would affect all petitions for which an employer petitioner would submit the Form I-129, including: H-1B visas, L visas, O visas, TN visas, and R visas.
Why is DHS proposing this change?
DHS justified the departure from this policy on the following grounds:
Employers always must prove eligibility;
Officers should be able to assess each filing against current facts and evidence alone;
Concerns that there may have been errors with adjudications in the past; and
The government needs to fight fraud and abuse and to protect American workers.
What does this mean for employers and their foreign workers?
The stakes are high. If DHS finalizes the rule, employers and foreign workers should prepare for:
Additional and more frequent Requests for Evidence (RFEs);
Heightened informational and evidentiary demands;
Longer processing times;
Greater time, cost, and effort for submissions; and
Less certainty for employers.
Since the proposal is not yet in effect, employers and foreign workers should continue to follow the current policy. In the meantime, they should take the following actions:
Target upcoming extensions and start assembling petitions and evidence early;
Prepare the renewal petition as though it were an initial petition;
Build extra time into the process and revisit budgetary considerations;
Assess how this may affect your workforce fees;
Monitor any developments, including potential litigation; and
Consider submitting a comment to DHS.
Consider Contributing to the Process: Submit a Comment
The comment period gives employers an opportunity to shape the final rule. DHS will review the comments before finalizing the proposal, and thoughtful submissions can make a real difference. Comments are due 30 days after publication. The deadline to submit a comment is November 13, 2026.
Pierson Ferdinand would welcome the chance to help you prepare and submit a comment that reflects your experience and concerns. Please reach out to us soon so that we have ample time to craft a strong submission on your behalf.
Partner Giovanni Antonucci Di Cesare (giovanni.antonucci@pierferd.com) and Junior Partner Allison Bustin (allison.bustin@pierferd.com) are available to counsel and to address any immigration matters, including the preparation and submission of comments on this proposed rule.
This publication and/or any linked publications herein do not constitute legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, the author(s) and PierFerd assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, this publication may constitute Attorney Advertising. © 2026 Pierson Ferdinand LLP.
