Policy Update · Proposed October 14, 2026 · JBNP Law
USCIS has proposed ending the rule that tells officers to give weight to your earlier approval when you file an extension on the same facts. It is only a proposal, but it would change how every H-1B, L-1, E, and TN extension is reviewed.
On October 14, 2026, USCIS published a proposed rule in the Federal Register (DHS Docket USCIS-2026-0529, RIN 1615-AD26) that would delete 8 CFR 214.1(c)(5). That provision directs officers to give deference to a prior approval when a later extension request involves the same parties and the same underlying facts, unless there is a material error, a material change, or new material information that adversely affects eligibility. USCIS would also revise its Policy Manual guidance on deference.
The proposal reverses the position DHS codified in December 2024. Comments are due November 13, 2026 at midnight Eastern, and must be submitted through regulations.gov. Nothing changes for your case today.
The proposal applies to Form I-129 petitions for nonimmigrant workers, mainly extensions of stay and petition validity. The preamble lists E, H-1B, H-2A, H-2B, H-3, L-1, O, P, Q-1, R-1, and TN. Dependents who file Form I-539 are not covered.
If it is finalized, an extension of an identical, previously approved case could be adjudicated as if the officer had never seen it. DHS argues that deference shifts the burden of proof from the petitioner to the officer, which it says conflicts with INA section 291, and that it can discourage officers from issuing requests for evidence (RFEs). DHS estimates about 6,044 additional RFEs a year and roughly 64 more days of processing for the cases that receive one.
In practice, the cases most exposed are those approved on thin facts the first time: new-office L-1s whose staffing never matched the plan, and E-2 or H-1B cases where the role or the business has drifted from what was originally described.
For every client approaching an extension, we are building the record as if it were a first filing: current organizational charts, payroll, evidence that the business did what the original petition promised, and role descriptions that match reality. We are also flagging cases where filing earlier than the usual window makes sense.
If you or your company want to put a comment on the record, we can help you prepare one before November 13.
If you hold an approved petition expiring in the next 18 months, review our H-1B and L-1 pages, then book a consultation so we can stress-test the extension before it is filed.
This post is general information, current as of when it was written — not legal advice, and no substitute for talking to an attorney about your own case. This area is changing quickly, and reading this doesn’t make us your lawyers. Please get advice on your specific situation before you act.