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Proposed Rule2026-20941

Removing Deference to Prior USCIS Determinations of Eligibility

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Published

October 14, 2026

Issuing agencies

Homeland Security Department

Abstract

The U.S. Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), proposes to remove 8 CFR 214.1(c)(5), which generally provides that USCIS gives deference to a prior approval involving the same facts when adjudicating a request to extend a petition for an alien's employment or stay. This change would better align DHS regulations with the statute, which places the burden of proving eligibility for all immigration benefits on the petitioner, applicant, or beneficiary; strengthen adjudicatory review; and support agency priorities to improve the integrity of the immigration system and better protect the interests of U.S. workers.

Full Text

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<title>Federal Register, Volume 91 Issue 197 (Wednesday, October 14, 2026)</title>
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[Federal Register Volume 91, Number 197 (Wednesday, October 14, 2026)]
[Proposed Rules]
[Pages 65119-65133]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-20941]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 91, No. 197 / Wednesday, October 14, 2026 /
Proposed Rules

[[Page 65119]]

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2870-26; DHS Docket No. USCIS-2026-0529]
RIN 1615-AD26

Removing Deference to Prior USCIS Determinations of Eligibility

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Homeland Security (DHS), U.S.
Citizenship and Immigration Services (USCIS), proposes to remove 8 CFR
214.1(c)(5), which generally provides that USCIS gives deference to a
prior approval involving the same facts when adjudicating a request to
extend a petition for an alien's employment or stay. This change would
better align DHS regulations with the statute, which places the burden
of proving eligibility for all immigration benefits on the petitioner,
applicant, or beneficiary; strengthen adjudicatory review; and support
agency priorities to improve the integrity of the immigration system
and better protect the interests of U.S. workers.

DATES: Written comments on the notice of proposed rulemaking (NPRM)
must be submitted on or before November 13, 2026. The electronic
Federal Docket Management System will accept comments before midnight
Eastern time at the end of that day.

ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. USCIS-2026-0529
through the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In
accordance with 5 U.S.C. 553(b)(4), the summary of this rule found
above may also be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
website instructions for submitting comments.
Comments submitted in a manner other than via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including emails or letters sent to DHS or USCIS
officials, will not be considered comments on the proposed rule and may
not receive a response from DHS. Please note that DHS and USCIS cannot
accept any comments that are hand-delivered or couriered. In addition,
DHS and USCIS cannot accept comments contained on any form of digital
media storage devices, such as CDs/DVDs and USB drives. USCIS is also
not accepting mailed comments at this time. If you cannot submit your
comment by using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact the
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, U.S. Department of Homeland
Security, by telephone at (240) 721-3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT: Business and Foreign Workers Division,
Office of Policy and Strategy, U.S. Citizenship and Immigration
Services, U.S. Department of Homeland Security, 5900 Capital Gateway
Drive, Camp Springs, MD 20746; telephone (240) 721-3000 (not a toll-
free call).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Background
A. Purpose and Summary of the Proposed Regulatory Action
B. Legal Authority
C. Extensions of Stay and Petition Validity
D. History of Deference in USCIS Adjudications
III. Discussion of Proposed Rule
A. Restoring the Proper Allocation of the Burden of Proof
B. Enhancing USCIS Officer Fact-Finding Authority
C. Strengthening Program Integrity
D. Reconsideration of the Deference Policy
E. Reliance Interests and Alternatives Considered
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 14192
(Unleashing Prosperity Through Deregulation)
1. Summary
2. Background and Purpose
3. Population
4. Cost-Benefit Analysis
B. Regulatory Flexibility Act
1. Initial Regulatory Flexibility Analysis
C. Unfunded Mandates Reform Act
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. National Environmental Policy Act
H. Paperwork Reduction Act

Table of Abbreviations

CFR--Code of Federal Regulations
DHS--U.S. Department of Homeland Security
FR--Federal Register
HSA--Homeland Security Act of 2002
INA--Immigration and Nationality Act
NEPA--National Environmental Policy Act
NOID--Notice of Intent to Deny
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act of 1995
RFA--Regulatory Flexibility Act of 1980
RFE--Request for Evidence
RIA--Regulatory Impact Analysis
RIN--Regulation Identifier Number
SBA--U.S. Small Business Administration
Secretary--Secretary of Homeland Security
UMRA--Unfunded Mandates Reform Act 1995
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services

I. Public Participation

DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including emails or letters
sent to DHS or USCIS officials, will not be considered comments on the
proposed rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2026-0529 for this rulemaking. Please note all submissions will
be posted, without change, to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, and will include

[[Page 65120]]

any personal information you provide. Therefore, submitting this
information makes it public. You may wish to consider limiting the
amount of personal information that you provide in any voluntary public
comment submission you make to DHS. DHS may withhold information
provided in comments from public viewing that it determines may impact
the privacy of an individual or is offensive. For additional
information, please read the Privacy and Security Notice available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, referencing
DHS Docket No. USCIS-2026-0529. You may also sign up for email alerts
on the online docket to be notified when comments are posted or a final
rule is published.

II. Background

A. Purpose and Summary of the Proposed Regulatory Action

The purpose of this proposed rule is to remove 8 CFR 214.1(c)(5).
That regulation instructs USCIS officers to give deference to a prior
determination of a petitioner's, applicant's, or beneficiary's
eligibility when adjudicating a request filed on Form I-129, Petition
for a Nonimmigrant Worker, involving the same parties and the same
underlying facts.\1\ This requirement most often applies when a
petitioning employer seeks to extend a petition for an alien's
employment or authorized stay in the United States under the same
previously approved nonimmigrant worker classification. Under the
current regulation, USCIS must generally defer to the prior
determination of eligibility for the nonimmigrant worker classification
unless there was a material error, a material change, or new material
information. 8 CFR 214.1(c)(5).
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\1\ For most nonimmigrant classifications that use Form I-129,
the filer is referred to as the ``petitioner.'' However, for some
classifications (for example, the E and TN classifications), the
filer is referred to as the ``applicant.'' For simplicity,
references in this preamble to a ``petitioner'' also include an
``applicant,'' and references to a ``petition'' also include an
``application.''
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When DHS promulgated 8 CFR 214.1(c)(5), the agency stated that
petitioners would ``continue to have the burden to present all required
and relevant evidence'' to establish eligibility for the requested
nonimmigrant worker classification notwithstanding the prior approval.
See Modernizing H-1B Requirements, Providing Flexibility in the F-1
Program, and Program Improvements Affecting Other Nonimmigrant Workers,
89 FR 103054, 103093 (Dec. 18, 2024). The agency also stated that
``deference does not equate to a lack of USCIS review of the
petition.'' Id.
DHS now believes, however, that the practical effect of the
deference regulation is inconsistent with those statements. In
particular, the deference regulation and policy effectively shift the
burden from the petitioner to the USCIS officer to justify departing
from a prior approval. DHS is also concerned that the deference policy
has had the practical effect of encouraging USCIS officers to
prioritize consistency with prior approvals and efficiency in
adjudication of extension requests rather than fully exploring all
facts and evidence to ensure continued eligibility for the nonimmigrant
worker benefit. As a result, DHS believes that some petitioners have
interpreted the deference policy as reducing their obligation to
demonstrate continued eligibility for the requested nonimmigrant worker
classification when seeking an extension of a prior approval. Overall,
the deference regulation and policy risk undermining program integrity
by potentially reducing scrutiny of extension requests of nonimmigrant
worker classifications, thereby potentially perpetuating erroneous
prior approvals and creating an environment in which fraudulent and
meritless petitions are less likely to be detected before approval. See
Section III of this preamble.
Therefore, DHS proposes to remove 8 CFR 214.1(c)(5). DHS believes
that this change would better align DHS regulations and USCIS
adjudicatory practice with the agency's longstanding interpretation of
the Immigration and Nationality Act (INA or Act), which places the
burden of proof in establishing eligibility for all immigration
benefits on the petitioner. See INA sec. 291, 8 U.S.C. 1361; Matter of
Chawathe, 25 I. & N. Dec. 369, 375 n.7 (USCIS AAO, 2010) (``The burden
of proving eligibility for the benefit sought remains entirely with the
applicant''). Removing the deference requirement would also help to
ensure that USCIS officers fully review the facts and evidence in every
case to ensure continued eligibility. Overall, DHS believes that this
change would promote more complete adjudications, strengthen program
integrity in the adjudication of nonimmigrant worker benefits, reduce
the risk of perpetuating erroneous approvals, and support the
Administration's broader efforts to better protect U.S. workers and
more faithfully enforce the immigration laws enacted by Congress.\2\
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\2\ See, e.g., The White House, ``President Trump Is Delivering
for American Workers'' (Sept. 1, 2025), <a href="https://www.whitehouse.gov/articles/2025/09/president-trump-is-delivering-for-american-workers/">https://www.whitehouse.gov/articles/2025/09/president-trump-is-delivering-for-american-workers/</a>
; The White House, ``The Trump Effect: Higher Pay for American
Workers'' (June 6, 2025), <a href="https://www.whitehouse.gov/articles/2025/06/trump-effect-higher-pay-for-american-workers/">https://www.whitehouse.gov/articles/2025/06/trump-effect-higher-pay-for-american-workers/</a>; The White House,
``Trump Administration Celebrates Successes for America's Workers''
(Aug. 26, 2025), <a href="https://www.whitehouse.gov/articles/2025/08/trump-administration-celebrates-successes-for-americas-workers/">https://www.whitehouse.gov/articles/2025/08/trump-administration-celebrates-successes-for-americas-workers/</a>; The White
House, ``America First Trade Policy'' (Jan. 20, 2025), <a href="https://www.whitehouse.gov/presidential-actions/2025/01/america-first-trade-policy">https://www.whitehouse.gov/presidential-actions/2025/01/america-first-trade-policy</a>; The White House, ``Report to the President on the America
First Trade Policy: Executive Summary'' (Apr. 3, 2025), <a href="https://www.whitehouse.gov/fact-sheets/2025/04/report-to-the-president-on-the-america-first-trade-policy-executive-summary">https://www.whitehouse.gov/fact-sheets/2025/04/report-to-the-president-on-the-america-first-trade-policy-executive-summary</a>.
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B. Legal Authority

The Secretary of Homeland Security (Secretary)'s authority for
these proposed regulatory amendments is found in various sections of
the INA, 8 U.S.C. 1101 et seq., and the Homeland Security Act of 2002
(HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. General
authority for issuing this proposed rule is found in section 103(a) of
the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer
and enforce the immigration and nationality laws and establish such
regulations as the Secretary deems necessary for carrying out such
authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests
all of the functions of DHS in the Secretary and authorizes the
Secretary to issue regulations.\3\ Further authority for these proposed
regulatory amendments is found in:
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\3\ Although several provisions of the INA discussed in this
NPRM refer exclusively to the ``Attorney General,'' such provisions
are now to be read as referring to the Secretary of Homeland
Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b),
542 note, 557; 8 U.S.C. 1103(a)(1), (g), 1551 note; Nielsen v.
Preap, 586 U.S. 392, 397 n.2 (2019).
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<bullet> Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which
authorizes the Secretary to prescribe, by regulation, the time and
conditions of the admission of nonimmigrants;
<bullet> Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), which,
inter alia, authorizes the Secretary to prescribe how an importing
employer may petition for nonimmigrant workers, as well as the form of
the petition and the information that an importing employer must
provide in the petition;
<bullet> Section 235(d)(3) of the INA, 8 U.S.C. 1225(d)(3), which
authorizes ``any immigration officer . . . to administer oaths and to
take and consider evidence of or from any person

[[Page 65121]]

touching the privilege of any alien or person he believes or suspects
to be an alien to enter, reenter, transit through, or reside in the
United States or concerning any matter which is material and relevant
to the enforcement of [the INA] and the administration of [DHS]'';
<bullet> Section 287(b) of the INA, 8 U.S.C. 1357(b), which
authorizes the taking and consideration of evidence ``concerning any
matter which is material or relevant to the enforcement of [the INA]
and the administration of [DHS]'';
<bullet> Section 402 of the HSA, 6 U.S.C. 202, which charges the
Secretary with ``[e]stablishing and administering rules \4\ . . .
governing the granting of visas or other forms of permission . . . to
enter the United States'' and ``[e]stablishing national immigration
enforcement policies and priorities''; see also HSA sec. 428, 6 U.S.C.
236; and
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\4\ Section 102(e) of the HSA, 6 U.S.C. 112(e), provides that
``the issuance of regulations by the Secretary shall be governed by
the provisions of chapter 5 of title 5, except as specifically
provided in this chapter, in laws granting regulatory authorities
that are transferred by this chapter, and in laws enacted after
November 25, 2002.''
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<bullet> Section 451(a)(3) and (b) of the HSA, 6 U.S.C. 271(a)(3)
and (b), transferring to USCIS the authority to adjudicate petitions
for nonimmigrant status, establish policies for performing that
function, and set national immigration services policies and
priorities.

C. Extensions of Stay and Petition Validity

Many aliens come to the United States under a nonimmigrant visa
classification. Some of these classifications permit aliens to be
employed or otherwise provide services in the United States for
temporary periods. See INA secs. 101(a)(15) and 214, 8 U.S.C.
1101(a)(15) and 1184. Each classification for purposes of employment or
otherwise performing services in the United States has its own
eligibility requirements and requirements related to the period of
admission or status, maintenance of status, the ability to change jobs
or employers, and the ability to extend nonimmigrant status. Id.
For certain nonimmigrant visa classifications, a petitioner seeking
the services of an alien beyond the previously granted period of
admission may file an extension of stay request on Form I-129, Petition
for Nonimmigrant Worker.\5\ 8 CFR 214.1(c)(1). An extension of stay is
ordinarily only granted if the alien is still in, and has maintained,
his or her nonimmigrant status at the time the request is filed. 8 CFR
214.1(c)(6). When requesting an extension of stay on Form I-129, the
petitioner must submit evidence that the alien maintained his or her
status along with all other initial evidence specified in the
regulations and in accordance with form instructions. See 8 CFR
214.1(c)(1), (6); Form I-129 Instructions, Instructions for Petition
for Nonimmigrant Worker, <a href="https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf</a> (Sept. 9, 2026).
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\5\ The petitioner must file Form I-129 to request an extension
of stay for E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1,
O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1, or TN nonimmigrant
workers. For dependents of such workers, extension of stay requests
may be filed on Form I-539, Application to Extend/Change
Nonimmigrant Status.
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An extension of stay request is often submitted together with a
request for an extension of petition validity, which is a request to
allow the alien to continue to work for his or her current employer in
the same nonimmigrant classification.\6\ The petition extension and
extension of stay request are filed on Form I-129 along with evidence
of continued eligibility for the nonimmigrant classification, and all
other initial evidence specified in the regulations and in accordance
with form instructions.\7\
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\6\ USCIS Policy Manual, Volume 2, Part A, Chapter 4 ``Extension
of Stay, Change of Status, and Extension of Petition Validity,
<a href="https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4">https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4</a> (last
visited July 13, 2026) (``The burden of proof to establish
eligibility for an immigration benefit always falls solely on the
benefit requestor. The burden of proof never shifts to USCIS.'').
\7\ Typically, determinations on extensions of petition validity
are made by USCIS when adjudicating the Form I-129; however, in
certain circumstances, U.S. Customs and Border Protection and U.S.
Department of State may also make a determination on eligibility for
an extension of petition validity.
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A request for an extension of petition validity follows a previous
finding of eligibility for the nonimmigrant classification. Although
there is a previous finding of eligibility, the burden of proof in any
immigration request--including a request for an extension of petition
validity--remains on the petitioner. See INA sec. 291, 8 U.S.C.
1361.\8\ Officers are not bound to approve subsequent petitions seeking
immigration benefits where eligibility has not been demonstrated,
merely because of a prior approval.\9\ The prior approval may have been
erroneous, in which case giving deference to that prior determination
of eligibility because the adjudicating officer was not aware of the
error may perpetuate unmeritorious approvals. Even if the prior
approval was not erroneous, the burden of proof remains on the
petitioner to establish eligibility in each benefit request. USCIS
decides each matter according to the evidence of record on a case-by-
case basis.\10\
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\8\ See also Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010);
Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012);
Matter of Simieo Solutions, LLC, 26 I. & N. Dec. 542 (AAO 2015);
Love Korean Church v. Chertoff, 549 F.3d 749 (9th Cir. 2008);
Shanti, Inc. v. Reno, 36 F.Supp.2d 1151 (D. Minn. 1999); Mo v.
USCIS, 719 F.Supp.3d 21 (D.D.C. 2024); Borushevskyi v. USCIS, 664
F.Supp.3d 117 (D.D.C. 2023); Web Saigon US LLC v. USCIS, 541
F.Supp.3d 1160 (D. Ore. 2021); Battineni v. Mayorkas, 752 F.Supp.3d
195 (D.D.C. 2024); Krasniqi v. Dibbins, 558 F.Supp.3d 168 (D. N.J.
2021); 8 CFR 103.2(b)(1) (``An applicant or petitioner must
establish that he or she is eligible for the requested benefit at
the time of filing the benefit request and must continue to be
eligible through adjudication.'').
\9\ USCIS Policy Manual, Volume 2, Part A, Chapter 4 ``Extension
of Stay, Change of Status, and Extension of Petition Validity,
<a href="https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4">https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4</a> (last
visited July 13, 2026); Matter of Church Scientology Intl, 19 I&N
Dec. 593, 597 (Commissioner 1988).
\10\ 8 CFR 103.2(b)(1) (``An applicant or petitioner must
establish that he or she is eligible for the requested benefit at
the time of filing the benefit request and must continue to be
eligible through adjudication.''); USCIS Policy Manual, Volume 2,
Part A, Chapter 4, ``Extension of Stay, Change of Status, and
Extension of Petition Validity,'' <a href="https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4">https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4</a> (last visited July 13, 2026).
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Despite these well-established principles, the regulation at 8 CFR
214.1(c)(5) instructs USCIS officers to give deference to a prior
determination of eligibility when adjudicating a request filed on Form
I-129 involving the same parties and the same underlying facts unless
the officer determines that there was a material error involved with a
prior approval, a material change in circumstances or eligibility
requirements, or new, material information that adversely impacts
eligibility. As discussed in Section III. of this preamble, DHS
believes that the deference regulation is in tension with the statutory
requirement that the petitioner must bear the burden to demonstrate
eligibility for an immigration benefit, and it may unduly limit
adjudicating officers' inherent fact-finding authority in certain
cases.

D. History of Deference in USCIS Adjudications

While the codification of deference was relatively recent, USCIS
has had a history of implementing and rescinding deference through a
series of policy actions beginning in 2004. First, in April 2004, USCIS
issued a memorandum discussing the significance of prior USCIS
adjudications. See USCIS, ``The Significance of a Prior CIS Approval of
a Nonimmigrant Petition in the Context

[[Page 65122]]

of a Subsequent Determination Regarding Eligibility for Extension of
Petition Validity,'' HQPRD 72/11.3 (Apr. 23, 2004). This memorandum,
while recognizing USCIS' authority to question prior determinations and
that each matter must be decided according to the evidence of record on
a case-by-case basis, first set out the policy instructing
adjudications officers to give deference to a prior determination of
eligibility in matters relating to an extension of nonimmigrant
petition validity involving the same parties (petitioner and
beneficiary) and the same underlying facts, unless there was material
error, a substantial change in circumstances, or new material
information.
In October 2017, USCIS issued a memorandum which rescinded the 2004
guidance, expressing concerns that the 2004 memorandum improperly
shifted the burden from the petitioner to USCIS. See USCIS,
``Rescission of Guidance Regarding Deference to Prior Determinations of
Eligibility in the Adjudication of Petitions for Extension of
Nonimmigrant Status,'' PM-602-0151 (Oct. 23, 2017). In the 2017
memorandum, USCIS also expressed concerns that the deference policy
unduly limited adjudicating officers' inherent fact-finding authority
in certain cases.
In April 2021, USCIS reinstituted its deference policy and
incorporated it into the USCIS Policy Manual. See USCIS Policy Manual,
Volume 2, Part A, Chapter 4 ``Extension of Stay, Change of Status, and
Extension of Petition Validity.'' The policy manual acknowledges that
officers are not required to approve subsequent petitions where
eligibility has not been demonstrated strictly because of a prior
approval but stressed that they should defer to prior determinations
involving the same parties and underlying facts. According to the
policy manual, if an officer determines that deference to a prior
approval is not appropriate, the officer must acknowledge the previous
approval(s) in the denial, Request for Evidence (RFE), or Notice of
Intent to Deny (NOID) and articulate the reason for not deferring to
the previous determination (for example, due to a material error,
change in circumstances, or new adverse material information). See id.
Officers must provide the petitioner with an opportunity to respond to
the new information consistent with 8 CFR 103.2(b)(16)(i). See id.
In December 2024, DHS codified its deference policy at 8 CFR
214.1(c)(5) through the final rule Modernizing H-1B Requirements,
Providing Flexibility in the F-1 Program, and Program Improvements
Affecting Other Nonimmigrant Workers, 89 FR 103054 (Dec. 18, 2024)
(Modernization Final Rule). Current 8 CFR 214.1(c)(5) states that when
adjudicating a Form I-129, Petition for Nonimmigrant Worker, involving
the same parties and the same underlying facts, USCIS gives deference
to its prior determination of eligibility unless there is a material
error, a material change, or new material information that adversely
impacts eligibility.

III. Discussion of Proposed Rule

DHS proposes to remove its regulation at 8 CFR 214.1(c)(5), and the
deference policy, which instructs USCIS officers to give deference to a
prior determination of the petitioner's or beneficiary's eligibility
when adjudicating a request filed on Form I-129 involving the same
parties and the same underlying facts, unless there was a material
error, a material change, or new material information that adversely
impacts eligibility.\11\ This proposed change would apply to all
benefit requests filed using Form I-129, Petition for a Nonimmigrant
Worker. This proposal would not prohibit USCIS officers from
considering a prior approval where relevant. Rather, it would remove
the requirement that officers begin from a position of deference to the
prior approval. DHS believes that this change would better ensure that
officers fully consider all relevant facts and evidence to ensure
continued eligibility, and adjudicate each petition or request on a
case-by-case basis to determine whether the petitioner has met its
burden of proof to demonstrate continued eligibility for the benefit.
Overall, DHS believes that removing deference would enhance program
integrity and thereby better protect the interests of U.S. workers,
consistent with this Administration's priorities.
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\11\ If this proposed rule becomes final, USCIS would make
corresponding changes to the current policy guidance on deference.
See USCIS Policy Manual, Volume 2, Part A, Chapter 4 ``Extension of
Stay, Change of Status, and Extension of Petition Validity,''
<a href="https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4">https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4</a> (last
visited July 13, 2026).
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A. Restoring the Proper Allocation of the Burden of Proof

Removing deference would better align DHS regulations with the
agency's longstanding interpretation of section 291 of the INA, 8
U.S.C. 1361, which places the burden of proof on the petitioner or
applicant to establish eligibility for each immigration benefit sought.
See also Matter of Chawathe, 25 I. & N. Dec. 369, 375 n.7 (USCIS AAO,
2010) (``The burden of proving eligibility for the benefit sought
remains entirely with the applicant.''). Although an agency may
establish reasonable evidentiary presumptions, see e.g., Reno v.
Flores, 507 U.S. 292, 313 (1993), any such presumption must be
consistent with the statutory text and scheme, see Lin v. U.S. Dep't of
Justice, 494 F.3d 296, 308 (2d Cir. 2007) (en banc). Whether or not the
deference regulation is consonant with the statute, DHS now believes
that it has the practical effect of shifting the burden of proof from
the petitioner to the agency, in tension with section 291 of the INA, 8
U.S.C. 1361, with respect to the eligibility criteria that Congress
intended the agency to determine for each immigration benefit sought.
When DHS promulgated 8 CFR 214.1(c)(5), the agency stated that
petitioners would continue to have the burden to demonstrate continued
eligibility for the requested nonimmigrant worker classification. See
89 FR 103094. In practice, however, the deference policy effectively
shifts the burden from the petitioner to the adjudicating officer who
must identify a material error or change in circumstances to justify
deviating from the prior approval.\12\ In effect, this creates a
default position that the prior approval was correct, and the
petitioner and beneficiary remain eligible for the benefit unless the
officer finds that an enumerated exception to the deference policy
applies (i.e., that there was a material error, material change in
circumstances or eligibility requirements, or new, material information
that adversely impacts eligibility). This structure effectively shifts
the burden from the petitioner to

[[Page 65123]]

the adjudicating officer. Instead of requiring the petitioner to
establish that the alien is eligible to continue to work in the United
States under a nonimmigration classification, the deference regulation
and policy effectively require the officer to justify why the prior
approval should not control.
---------------------------------------------------------------------------

\12\ Indeed, DHS also explained in the preamble of the
Modernization Final Rule that under the deference regulation, USCIS
officers must give ``close scrutiny before deviating from a prior
approval involving the same parties and same underlying facts.'' 89
FR 103094. USCIS implementing guidance also imposes several
requirements on adjudicating officers who determine that deference
is not appropriate, including acknowledging the previous approval,
articulating the reasons for not deferring to that prior
determination, obtaining supervisory approval before deviating from
the prior approval, and giving the petitioner an opportunity to
respond. See USCIS Policy Manual, Volume 2, Part A, Chapter 4,
``Extension of Stay, Change of Status, and Extension of Petition
Validity,'' <a href="https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4">https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4</a> (last visited July 13, 2026). This further illustrates
that the deference policy has the practical effect (if not the
intent) of relaxing the petitioner's burden of proof by shifting the
burden to the adjudicating officer to justify deviating from a prior
approval. It also signals to officers that a less than thorough
review is appropriate when adjudicating extension requests following
a prior approval.
---------------------------------------------------------------------------

B. Enhancing USCIS Officer Fact-Finding Authority

Removing deference would also better ensure that USCIS officers
review the facts and evidence in every case to ensure continued
eligibility before approving a petition extension and granting an
extension of stay request. The deference policy suggests that a less
than thorough review of each case may be acceptable and gives the
impression of unduly limiting adjudicating officers' inherent fact-
finding authority. Some officers may view deference as a restriction on
their ability to consider all the facts of the case. Rather than taking
appropriate action if eligibility was not demonstrated in the petition
(such as issuing an RFE), some officers may simply grant the benefit
absent glaring errors or changes as a result of the deference policy.
Indeed, as shown in Table 3 infra, the RFE rate increased by 2.9
percent more than the RFE rate for the comparison group after the
deference policy was rescinded in 2017. DHS acknowledges that other
changes unrelated to deference may have, in part, contributed to this
increased RFE rate. However, DHS believes that it is reasonable to
conclude that the rescission of the deference policy was one of the
contributing factors for this increased RFE rate. This increase is
consistent with DHS's concern that the deference policy has had the
effect of discouraging some officers from requesting additional
evidence even in cases where the petitioner has not established
eligibility for the nonimmigrant worker classification in connection
with the current request.
An adjudicating officer's fact-finding authority should not be
constrained by any prior petition approval. Instead, officers should
thoroughly review a petition for eligibility and request additional
documentation as appropriate based on the merits of each case,
consistent with USCIS policy regarding requests for evidence, notices
of intent to deny, and the adjudication of petitions for nonimmigrant
benefits. Because deference may be viewed as a default position upon
beginning review of certain filings, the deference policy may, in some
cases, have had the unintended effect of limiting the ability of
officers to conduct a thorough review of the facts and limiting
assessment of eligibility in each case. While officers may, of course,
reach the same conclusion as in a prior decision, they should not be
compelled to do so as a default starting point.\13\
---------------------------------------------------------------------------

\13\ DHS data also show that historical denial rates did not
statistically differ during periods when the deference policy was in
effect compared to when it was not in effect. One possible reason
for this is that even when deference did not apply, petitioners may
have been able to overcome issues raised in an RFE or NOID by
submitting additional evidence or information. DHS believes,
however, that the impact of the deference policy on officers' fact-
finding authority is best reflected in RFE rates rather than
approval or denial rates. The ultimate adjudicative decision reached
by the officer is not reflective of the extent to which an officer's
fact-finding authority may have been restricted during the
adjudicative review process. Rather, the variations in RFE rates
during periods when deference applied versus the RFE rate when
deference did not apply strongly suggests that deference has had the
effect of discouraging some officers from requesting additional
evidence. Policies that discourage officers from issuing RFEs, even
when the officer determines that the petitioner has not yet
established eligibility, undermine the integrity of the lawful
immigration system and are inconsistent with enhancing an officer's
fact-finding authority, regardless of the ultimate adjudicative
decision.
---------------------------------------------------------------------------

In addition, deference increases the risk of officers not
discovering material errors in prior adjudications. Although the
deference policy allows officers to deviate from the prior decision if
there was a material error, if officers limited their review of the
cases before them because of an assumption that the prior decision was
correct, it would necessarily limit the discovery of material error.
Deferring to a determination of eligibility for nonimmigrant worker
classification that was made potentially up to several years before the
adjudication of the petition extension, and that may be based on
inaccurate or outdated facts or adjudicated under regulations which
have changed since the original approval was issued, is inconsistent
with this Administration's efforts to strengthen the integrity of the
nonimmigrant worker system.
USCIS does not believe additional officer training or clarification
on how to apply deference would sufficiently address these concerns. As
discussed earlier in this preamble, USCIS has a history of applying
deference over several years. Prior to its codification in the
regulations in 2024, the deference policy was in place at USCIS from
2004 until its rescission in 2017 and was reinstituted in 2021.
Therefore, USCIS officers generally have had training and operational
guidance on how to adjudicate petitions with the deference policy in
place. Training, however, is not the issue or solution. Rather, any
deference requirement itself conveys a fundamental tension with an
officer's obligation to conduct a fulsome review to ensure that the
petitioner met its burden before granting a nonimmigrant worker
benefit. Indeed, the deference policy was based in part on a desire to
increase efficiency by reducing the officer's need to revisit prior
determinations of eligibility. That efficiency, however, has had the
unintended effect of discouraging officers from thoroughly reviewing a
case when adjudicating extension requests for nonimmigrant worker
classifications. DHS now believes that the deference policy is
inconsistent with ensuring that officers fully evaluate eligibility in
every case, which is necessary to protect the integrity of the
immigration benefits system and the interests of U.S. workers by
ensuring that petitioners and beneficiaries are eligible for the
requested nonimmigrant worker benefit.

C. Strengthening Program Integrity

DHS also believes that deference may undermine program integrity,
including by creating opportunities for unscrupulous petitioners to
submit fraudulent or misleading petitions for nonimmigrant worker
benefits. For example, an unscrupulous filer might submit a petition of
questionable merit, hoping that if it is approved, the approval can be
used as an anchor for later filings involving similar facts, related
beneficiaries, or the same employer. They may even file multiple of
these types of petitions and use the fact pattern that is the most
advantageous or that is the most quickly approved. Similarly, a
petitioner might overstate the beneficiary's role, compensation, or
qualifications in the first filing, expecting that once approved,
future filings will receive less scrutiny. Further, petitioners may be
less forthcoming about changes affecting their business operations or
the proffered position (such as reduced operations, loss of contracts,
altered job duties, or other compliance issues) if they believe a prior
approval is binding. If deference is expected, the petitioner may be
incentivized to file extensions without fully disclosing those changes.
Indeed, USCIS data provides some support for the concern that
deference may undermine program integrity by reducing scrutiny in some
cases and contributing to an environment in which misleading, non-
compliant, or fraudulent extensions of nonimmigrant worker petitions
are more likely to be approved. For example, the data demonstrate
higher percentages of fraud and non-compliance identified in the

[[Page 65124]]

H-1B and L-1A programs since the time when USCIS reinstituted its
deference policy and incorporated it into the USCIS Policy Manual.\14\
Specifically, for H-1B extension cases from FY 2022 through FY 2025,
the overall combined percentage of non-compliance and/or fraud among H-
1B sites visited during USCIS administrative and targeted site visits
was 22.39 percent. In comparison, when USCIS had a policy of no
deference, the overall combined percentage of H-1B non-compliance and/
or fraud among H-1B sites visited during FY 2018 through FY 2020 was
16.77 percent.\15\ For L-1A extension cases, the overall combined
percentage of non-compliance and/or fraud among L-1A sites visited
during USCIS administrative and targeted site visits from FY 2022
through FY 2025 was 24.46 percent. In comparison, the overall combined
percentage of L-1A non-compliance and/or fraud among L-1A sites visited
from FY 2018 through FY 2020 was 18.37 percent.\16\
---------------------------------------------------------------------------

\14\ USCIS, Releasable Data Regarding Fraud and Noncompliance in
the H-1B and L-1A Programs (Jun. 6, 2026). This data represents
administrative and targeted site visits conducted exclusively on H-
1B and L-1A extension petitions.
\15\ USCIS excluded FY 2021 data from this subset because the
deference policy was reinstated partway through FY 2021 (in April
2021) and was not in effect for more than half of that fiscal year.
\16\ USCIS excluded FY 2021 data from this subset because the
deference policy was reinstated partway through FY 2021 (in April
2021) and was not in effect for more than half of that fiscal year.
---------------------------------------------------------------------------

In other words, during the years that USCIS had a policy of
deference, the combined percentage of non-compliance and/or fraud among
sites visited in the H-1B and L-1A programs was higher than in the
years that USCIS did not have a policy of deference. This trend
reflected in a subset of H-1B and L-1A extension filings supports the
concern that deference undermines program integrity in potentially
limiting USCIS' ability to thoroughly review an extension petition on a
case-by-case basis, which in turn may incentivize frivolous or
fraudulent filings that falsely assert no material change. While DHS
acknowledges that other factors besides or in addition to deference may
have led to this higher percentage of identifying fraud or non-
compliance, it is reasonable to conclude that deference was one of the
contributing factors.
Removing deference would potentially disincentivize fraudulent
filings and help restore the integrity of the lawful immigration
system. This, in turn, would also better protect U.S. workers by
ensuring that petitions for nonimmigrant workers are only approved if
eligibility is established by the petitioner based on evidence
submitted in support of each petition.

D. Reconsideration of the Deference Policy

DHS acknowledges the history of the deference policy and its recent
codification at 8 CFR 214.1(c)(5) in the Modernization Final Rule. DHS
also acknowledges that some of the statements in this proposed rule
represent a shift from statements made in the Modernization Final Rule.
In the Modernization Final Rule, some commenters voiced concern that
codifying deference would constrain USCIS officers' fact-finding
authority. See 89 FR 103093. Commenters stated that USCIS officers
should not be constrained in requesting additional evidence in the
adjudication process. They also stated that requiring USCIS officers to
confirm all material facts before granting a benefit request would
serve as a fraud detection mechanism and deterrent.
At the time, DHS disagreed with the commenters' concerns. Id.
However, DHS has reconsidered the issue since publication of the
Modernization Final Rule and now believes that codification of the
deference policy may have had the unintended effect of appearing to
constrain USCIS officers' fact-finding authority, leading some USCIS
officers to conduct a less than fulsome review, and thus undermining
the agency's efforts to detect and deter fraud.\17\
---------------------------------------------------------------------------

\17\ See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009) (``[I]t suffices that the new policy is permissible under the
statute, that there are good reasons for it, and that the agency
believes it to be better, which the conscious change of course
adequately indicates.'').
---------------------------------------------------------------------------

In the NPRM proposing to codify deference, DHS stated that the
benefits of deference included promoting consistency and efficiency for
both USCIS and its stakeholders, and creating predictability for
petitioners and beneficiaries. DHS now believes that these benefits
were overstated and were not adequately weighed against the negative
impacts of deference. It is not clear that the codification of
deference actually promoted consistency and efficiency in adjudication,
and to any extent that it did, it did so at the expense of program
integrity. As discussed in this preamble, deference may incentivize
non-meritorious filings, give the appearance of unduly limiting
adjudicators' inherent fact-finding authority, and increase the risk
that erroneous prior approvals continue to serve as the basis for
granting extension petitions for nonimmigrant workers. Quite simply,
the deference policy is inconsistent with this Administration's focus
on restoring the integrity of the legal immigration system to better
protect U.S. workers by ensuring that only petitioners and
beneficiaries who meet eligibility criteria and demonstrate eligibility
are granted nonimmigrant worker benefits.

E. Reliance Interests and Alternatives Considered

DHS recognizes that some U.S. employers and nonimmigrant workers
may assert reliance interests in the continuation of the deference
policy. For example, U.S. employers that expect the continued approval
of their Form I-129 petitions may have made business arrangements based
on an assumption that these nonimmigrant workers would be able to
continue working for them. Similarly, nonimmigrant workers may have
made career and/or personal plans in the United States based on the
assumption that they would be able to continue their employment and
legal presence in the United States.
DHS has considered these reliance interests but believes that any
such interests are limited. The deference regulation does not itself
guarantee approval of an extension. Conversely, removing deference does
not substantively change eligibility for the requested immigration
benefit. This proposed change would not deprive U.S. employers of their
ability to continue employing nonimmigrant workers, nor would it
deprive nonimmigrant workers of their ability to continue working and
living in the United States, so long as they are able to establish
continued eligibility and obtain necessary approvals to continue such
employment. Petitioners and beneficiaries do not have a legitimate
expectation that an erroneous or unsupported prior approval would
continue to result in future approvals.
To the extent there are legitimate reliance interests in the
continuation of deference, DHS believes the negative impacts of the
deference policy, as discussed in this preamble, outweigh the potential
benefits to employers and aliens who may seek to rely on deference as
codified at 8 CFR 214.1(c)(5). DHS believes that its interest in
restoring integrity to the immigration system, including by ensuring
that USCIS adjudicators conduct fulsome reviews of all benefits
requests before granting a benefit, far outweighs any interest a
petitioner or beneficiary may have in expecting continued approvals.
This is especially true when deference increases the risk of USCIS
failing to identify petitioners and beneficiaries who were not eligible
for approval in the first place. DHS

[[Page 65125]]

therefore believes that removing 8 CFR 214.1(c)(5) and ending the
deference policy is necessary to ensure the integrity of the legal
immigration system, which in turn better protects U.S. workers.
DHS considered an alternative to removing the deference regulation
whereby DHS would revise the regulation to more clearly state that
USCIS has discretion whether to apply deference. This could be
accomplished by revising the regulatory text to state that USCIS ``may
give deference in its discretion'' instead of ``USCIS gives deference''
as currently stated at 8 CFR 214.1(c)(5). However, DHS is not proposing
this alternative because it would likely create unnecessary confusion
and uncertainty for both petitioners and USCIS officers as to whether
deference should be applied. Further, this alternative would not
adequately address the concerns with deference discussed above in
Section III.A through III.C of this preamble. Overall, DHS believes
that removing deference entirely is the most practical alternative to
enhance program integrity, including by ensuring that the burden
remains on the petitioner to establish eligibility for the requested
immigration benefit, and that USCIS adjudicators thoroughly review each
nonimmigrant worker extension request on its own merits before
extending the benefit.

IV. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (Unleashing
Prosperity Through Deregulation)

Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. Executive Order 14192 (Unleashing
Prosperity Through Deregulation) directs agencies to significantly
reduce the private expenditures required to comply with Federal
regulations and provides that ``any new incremental costs associated
with new regulations shall, to the extent permitted by law, be offset
by the elimination of existing costs associated with at least 10 prior
regulations.''
The Office of Management and Budget (OMB) has not designated this
rule as a ``significant regulatory action,'' under section 3(f) of
Executive Order 12866. Accordingly, OMB has not reviewed it.
This proposed rule is not an Executive Order 14192 regulatory
action because it is being issued with respect to an immigration-
related function of the United States. The proposed rule's primary
direct purpose is to implement or interpret the immigration laws of the
United States (as described in INA sec. 101(a)(17), 8 U.S.C.
1101(a)(17)) or any other function performed by the U.S. Federal
Government with respect to aliens. See OMB Memorandum M-25-20,
``Guidance Implementing Section 3 of Executive Order 14192, titled
`Unleashing Prosperity Through Deregulation' '' (Mar. 26, 2025).
Summary of Changes
The proposed rule would remove the deference provision at 8 CFR
214.1(c)(5), which currently instructs USCIS officers to give deference
to a prior determination for Form I-129 requests when the parties and
underlying facts remain the same, unless there was a material error, a
material change, or new material information that adversely impacts
eligibility. As a result of a more thorough review of each petition,
the number of requests for evidence (RFE) is expected to increase,
resulting in additional time burden for petitioners to submit
additional supporting documentation and evidence. The rule would also
impose costs on petitioners by lengthening adjudication times and
increasing uncertainty regarding continued employment. DHS estimates
that the rule would produce new annual costs to petitioners of
approximately $133,987 due to an increase in RFEs. In addition, the
rule would impose costs on USCIS by increasing the adjudicative
workload and operational costs, as officers would spend more time
reassessing eligibility issues previously reviewed and may issue an
increased number of RFEs, thereby increasing overall resource demands.
There are primary benefits associated with removing the deference
policy. Removal would clarify and reinforce that the statutory burden
of proof remains on the petitioner, not the agency. Removal would also
encourage a more thorough review of each petition and its supporting
evidence. Implementing a more thorough review process is expected to
improve the ability to detect prior errors, inconsistencies, or
indicators of fraud, and to eliminate the need to determine when
deference applies. For the broader public and the immigration system,
the change is expected to enhance confidence in the integrity and
reliability of the adjudication process and align with agency
priorities related to system integrity and protection of U.S. workers'
interests. Table 1 provides a detailed summary of estimated
quantifiable and unquantifiable impacts of the proposed rule.

[[Page 65126]]

Table 1--Summary of Provisions and Impacts of the Proposed Rule
------------------------------------------------------------------------
Estimated
Description of Estimated costs benefits of
Provision the change to of removing removing
provisions deference deference
------------------------------------------------------------------------
8 CFR Removing 8 CFR Quantitative: Quantitative:
214.1(c)(5). 214.1(c)(5), Petitioners-- Petitioners--
Deference to a which instructs [ballot] As a [ballot] None.
prior USCIS USCIS officers result of a DHS/USCIS--
determination of to give more thorough [ballot] None.
eligibility. deference to a review of the Qualitative:
prior petition, there Petitioners--
determination may be an [ballot] None.
for Form I-129 increase in the DHS/USCIS--
requests when number of [ballot]
the parties and Requests for Removing
underlying facts Evidence (RFE) deference would
remain the same, and the clarify and
unless there was associated time reinforce that
a material burden on the statutory
error, a petitioners. burden of proof
material change, DHS estimates remains on the
or new material the annual petitioner
information that increase in rather than the
adversely cost would be agency,
impacts $133,987 to consistent with
eligibility. petitioners due the statute.
to an increase [ballot]
in RFEs. Removing
DHS/USCIS-- deference would
[ballot] None. reinforce DHS'
Qualitative: authority to
Petitioners-- conduct a full,
[ballot] current review
Petitioners may of the evidence
experience in each
longer petition,
adjudication improving the
times and ability to
increased identify
uncertainty ineligibility
regarding or indicators
continued of fraud.
employment when
seeking
extensions of
stay and
petition
validity.
................. [ballot] Public--
Removing [ballot]
deference may Removing
lead deference would
petitioners to increase
spend confidence in
additional the integrity
staff, of the
attorneys, or adjudication
other resources process.
preparing more [ballot]
complete and Removing
well-organized deference would
extension ensure that
petitions, only
resulting in meritorious
unquantified filings for
preparation nonimmigrant
costs. workers are
DHS/USCIS-- approved and as
[ballot] Removal a result,
of deference improve the
may increase integrity of
operational the immigration
costs to USCIS system and
because advance
officers would policies that
spend more time protect the
assessing interests of
eligibility U.S. workers.
issues,
increasing the
overall
adjudicative
workload and
reviewing
process.
[ballot] The
proposed rule
may increase
agency resource
demands
associated with
adjudicative
actions such as
RFEs.
------------------------------------------------------------------------

Background and Population
The purpose of this proposed rule is to remove 8 CFR 214.1(c)(5),
which instructs USCIS officers to give deference to a prior
determination of the petitioner's, applicant's, or beneficiary's
eligibility when adjudicating a request filed using Form I-129,
Petition for a Nonimmigrant Worker, involving the same parties and the
same underlying facts, unless there was a material error, a material
change, or new material information that adversely impacts eligibility.
The USCIS deference policy was first implemented and applied from
April 2004 to October 2017. In April 2004, USCIS issued a memorandum
directing officers to generally give deference to prior approvals when
adjudicating petitions for extensions involving the same petitioner,
the same beneficiary, and the same underlying facts. See USCIS, ``The
Significance of a Prior CIS Approval of a Nonimmigrant Petition in the
Context of a Subsequent Determination Regarding Eligibility for
Extension of Petition Validity,'' HQPRD 72/11.3 (Apr. 23, 2004). While
recognizing that each case must be decided on its own merits and that
prior decisions could be revisited, the policy established that
officers should defer to that prior determination of eligibility absent
material error, substantial changed circumstances, or new material
information. Id.
In October 2017, USCIS issued a memorandum rescinding the April
2004 guidance. See USCIS, ``Rescission of Guidance Regarding Deference
to Prior Determinations of Eligibility in the Adjudication of Petitions
for Extension of Nonimmigrant Status,'' PM-602-0151 (Oct. 23, 2017).
The agency expressed concern that the deference policy improperly
shifted the burden of proof away from the petitioner and unduly
restricted officers' fact-finding authority. Id. From October 2017 to
April 2021, officers were not instructed to defer to prior approvals
and instead were instructed to make new determinations of eligibility
without relying on earlier decisions.
USCIS reinstated the deference policy in April 2021 and
incorporated it into the USCIS Policy Manual. See USCIS Policy Manual,
Volume 2, Part A, Chapter 4 ``Extension of Stay, Change of Status, and
Extension of Petition Validity.'' The manual instructs officers to
generally defer to prior approvals involving the same parties and the
same underlying facts, unless there was a material error in the prior
decision, a material change in circumstances, or new material
information that adversely impacts the petitioner's or beneficiary's
eligibility. Id. Then, in December 2024, DHS codified the reinstated
policy at 8 CFR 214.1(c)(5) in the H-1B Modernization Final Rule,
requiring deference to prior determinations in such cases unless one of
the exceptions applies. See 89 FR 103054 (Dec. 18, 2024).
Table 2 presents the total number of Form I-129 petitions for
nonimmigrant workers and the subset of those petitions that are
potentially eligible for deference for each fiscal year (FY) from FY
2014-FY 2025. Percentages show the petitions eligible for deference as
a share of total Form I-129 petitions. In the table, ``Deference Policy
Status'' informs the baseline for the proposed rule and indicates the
fiscal years in which the deference policy was in effect for USCIS
officers. Across FY2014 through FY2025, total Form I-129 petitions
generally increased over time, reaching 7,206,852 overall. Of these,
2,168,394 petitions, or 30 percent, were eligible for deference.
Eligibility generally ranged from 25 percent to 36 percent annually,
with the highest share in FY2020. In the most recent period when the
policy was in effect, FY2022

[[Page 65127]]

through FY2025, eligible petitions increased from 195,547 to 235,583,
while the eligible share remained around 27 percent to 33 percent, with
an average of 30 percent.
To estimate the population that would be subject to this proposed
rule over the next 10 years, we use the historical average from the
four most recent fiscal years, FY 2022-FY 2025, because this period
reflects consistent application of the deference policy. Since this
rule is intended to remove the deference policy, the baseline
population should represent a period in which the policy was fully in
effect. Therefore, FY 2021 is excluded from the population estimation
calculation because the deference policy was reinstated partway through
the year (in April 2021) and was not in effect for more than half of
that fiscal year.

Table 2--Form I-129 Nonimmigrant Worker Petitions and Deference Policy Status, by Fiscal Year
----------------------------------------------------------------------------------------------------------------
Percentage of
Total I-129 Petitions petitions
Deference policy status Fiscal year petitions eligible for eligible for
deference * deference (%)
----------------------------------------------------------------------------------------------------------------
In Effect....................................... 2014 453,649 139,028 31
2015 508,706 144,836 28
2016 564,134 142,548 25
2017 561,593 158,902 28
Not In Effect................................... 2018 583,469 163,884 28
2019 619,139 185,700 30
2020 590,357 209,705 36
2021 570,486 190,076 33
In Effect....................................... 2022 713,773 195,547 27
2023 643,214 194,314 30
2024 683,522 208,271 30
2025 714,810 235,583 33
-----------------------------------------------
Total....................................... .............. 7,206,852 2,168,394 30
4-Year Average (from FY 2022-2025).............. .............. 688,830 208,429 30
----------------------------------------------------------------------------------------------------------------
Source: USCIS Chief Data and Analytics Office--(CDAO), CLAIMS3 & ELIS, PAER #21508, queried May 2026.
* Deference is generally applied to petitions requesting an extension of stay, which can be identified using
Part 2, Question 2 (`Basis for Classification') on Form I[dash]129, specifically those where box `b' or `c' is
checked. USCIS may also apply the deference policy to petitions with box `f' checked, depending on what
amendment the petitioner is requesting and whether the change is materially substantive. However, category `f'
is not included in this analysis because those cases cannot be reliably identified and separated. As a result,
the population eligible for deference may be slightly undercounted.
USCIS, ``Instructions for Petition for Nonimmigrant Worker (Form I-129).'' OMB No. 1615-0009. Expires Dec. 31,
2027, available at: <a href="https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf</a>.

Costs and Benefits of the Proposed Rule
DHS expects that the proposed rule would generate both quantified
and unquantified costs and benefits, assessed relative to a baseline in
which the existing deference policy remains in effect.
Quantified Costs
Quantified costs are captured as the additional time burden on
petitioners resulting from more frequent RFEs. Removing the deference
policy requires officers to more thoroughly assess eligibility, which
may result in officers requesting additional documentation more often
to independently verify eligibility for each extension request. Each
RFE increases the time burden on petitioners, who must review the
notice, collect and organize documents, and prepare and submit a
response. To estimate the increase in RFEs attributable to removal of
the deference policy, DHS uses historical data from October 1, 2013, to
April 27, 2021, covering periods when the deference policy was in
effect (October 1, 2013, to October 11, 2017) and when it was not in
effect (October 12, 2017, to April 27, 2021).\18\
---------------------------------------------------------------------------

\18\ Although both periods (October 1, 2013 to October 11, 2017)
and (April 28, 2021 to the present) operated under a deference
policy, this analysis did not include period, April 28, 2021 to the
present, because the objective is to estimate the impact of the 2017
policy that removed deference, not the impact of the subsequent
policy that reinstated deference.
---------------------------------------------------------------------------

In order to isolate the effect of removal of the deference policy
on the number of RFEs, DHS uses a simple difference-in-difference (DID)
approach.\19\ For this analysis, the DID approach compares changes in
the RFE rate for the affected group (petitions affected by deference
policy) during the periods when deference policy was in effect and when
it was not in effect with changes in the RFE rate for the comparison
group (petitions not affected by deference policy) over the same
periods.
---------------------------------------------------------------------------

\19\ See Columbia University, Mailman School of Public Health,
Difference-in-Difference Estimation, <a href="https://www.publichealth.columbia.edu/research/population-health-methods/difference-difference-estimation">https://www.publichealth.columbia.edu/research/population-health-methods/difference-difference-estimation</a>. Difference-in-difference (DID) is
a quasi-experimental research design that makes use of longitudinal
data from treatment and control groups to obtain an appropriate
counterfactual to estimate a causal effect. DID is typically used to
estimate the effect of a specific intervention or treatment (such as
a passage of law, enactment of policy, or large-scale program
implementation) by comparing the changes in outcomes over time
between a population that is enrolled in a program (the intervention
group) and a population that is not (the control group).
---------------------------------------------------------------------------

Table 3 compares RFE rates for petitions filed during periods when
the deference policy was in effect and when it was not in effect, and
it compares petitions affected by the deference policy (affected group)
and petitions not affected by the deference policy (comparison group).
The table shows that the RFE rate for the affected group increased by
4.5 percent from when the deference policy was in effect to when it was
not in effect. However, this 4.5 percent increase does not account for
broader changes in RFE rates that may have occurred over the same
period for reasons unrelated to the deference policy. The DID approach
uses the comparison group to account for those broader trends. Because
the comparison group's RFE rate increased by 1.6 percent over the same
period, the affected group's relative increase was

[[Page 65128]]

2.9 percent.\20\ This method provides a better estimate of the policy-
associated change than just the affected group change alone. DHS
applied the same DID approach to denial rates and found no
corresponding change.\21\ As a result, this analysis does not indicate
an expected impact on denial rates.
---------------------------------------------------------------------------

\20\ Calculation: 4.5 percent-1.6 percent = 2.9 percent.
\21\ USCIS CDAO, CLAIMS3 & ELIS, PAER #21508, queried May 2026,
USCIS Analysis.

Table 3--Impact of Deference Policy on RFE Rates: Affected Group vs Comparison Group
--------------------------------------------------------------------------------------------------------------------------------------------------------
Affected Group ** Comparison Group ***
---------------------------------------------------------------
All * RFE All * RFE
---------------------------------------------------------------
Deference policy status Period Number of Number of RFEs Number of Number of RFEs
petitions for petitions petitions NOT for petitions
affected by affected by affected by NOT affected
deference deference deference by deference
policy policy policy policy
--------------------------------------------------------------------------------------------------------------------------------------------------------
In Effect...................................................... 10/1/2013- 589,272 111,561 1,224,803 384,404
10/11/2017
---------------------------------------------------------------
(RFE Rate)..................................................... (18.9%)
(31.4%)
---------------------------------------------------------------
Not In Effect.................................................. 10/12/2017- 653,142 152,856 1,109,502 366,023
4/27/2021
---------------------------------------------------------------
(RFE Rate)..................................................... (23.4%)
(33.0%)
---------------------------------------------------------------
Difference in RFE Rate (Deference Not in Effect--In Effect).... 4.5%
1.6%
----------------------------------------------------------------------------------------
Difference in Difference (Affected-Comparison)................. 2.9%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS CDAO, CLAIMS3 & ELIS, PAER #21508, queried May 2026.
* All: Total number of petitions in each period, including those that received RFEs and those that did not. Petitions are identified using Part 2,
Question 2 (`Basis for Classification') on Form I[dash]129, those where box `a', `b', `c', `d', or `e' is checked. Category `f 'is not included
because other policies affected RFE rate for this category while deference policy was not in effect.
** Affected: Petitions are identified using Part 2, Question 2 (`Basis for Classification') on Form I[dash]129, those where box 'b' or `c' is checked.
*** Comparison: Petitions are identified using Part 2, Question 2 (`Basis for Classification') on Form I[dash]129, those where box `a', `d', or `e' is
checked.

Based on the simple DID estimate, the removal of 8 CFR 214.1(c)(5)
and the deference policy may increase the RFE rate by 2.9 percentage
points. We apply this percentage to the estimated affected population
from Table 2 (208,429) to estimate that there would be approximately
6,044 additional RFEs annually after removing the deference policy.\22\
In order to estimate the opportunity cost of time for preparing an RFE
response, DHS assumes that a prospective petitioner would use an HR
specialist, an in-house attorney, or an outsourced attorney to prepare
an RFE response.\23\ DHS estimates that, on average, 63 percent of RFEs
were issued for petitions concurrently filed with a Form G-28, Notice
of Entry of Appearance as Attorney or Accredited Representative.\24\
Table 4 presents the estimated opportunity costs of time based on the
time petitioners would spend gathering and submitting evidence in
response to an increase in RFEs. The opportunity cost of time is
calculated by multiplying the estimated time burden of 10 minutes
(0.167 hours) \25\ by the compensation rate for the different methods
of preparation that petitioners choose to use. DHS does not know the
exact number of petitioners who would choose an in-house or an
outsourced attorney but assumes it may be a 50/50 split and, therefore,
provides an average of the two to estimate the opportunity cost of
time. DHS estimates the annual increase in cost would be approximately
$133,987 to petitioners due to the expected increase in RFEs. On
average, the cost of an additional RFE would be $22.17.\26\
---------------------------------------------------------------------------

\22\ Calculation: 6,044 = 208,429 x 2.9 percent.
\23\ DHS limited its analysis to HR specialists, in-house
attorneys, and outsourced attorneys to present estimated costs.
However, DHS understands that not all entities employ individuals
with these occupations and, therefore, recognizes equivalent
occupations may also prepare and submit these registrations.
\24\ Source: USCIS CDAO, CLAIMS3 & ELIS, PAER #21508, queried
May 2026.
\25\ Modernizing H-1B Requirements, Providing Flexibility in the
F-1 Program, and Program Improvements Affecting Other Nonimmigrant
Workers, 89 FR 103054, 103177 (Dec. 18, 2024) (final rule).
\26\ Calculation: $133,987 estimated annual cost to respond to
RFEs/6,044 estimated increase in RFEs = $22.17 average cost per RFE.

Table 4--Estimated Annual Costs to Form I-129 Petitioners From Removing the Deference Policy
----------------------------------------------------------------------------------------------------------------
Affected Compensation
Petitioner population * Time burden rate ** Estimated cost
A B C D = A x B x C
----------------------------------------------------------------------------------------------------------------
HR specialist................................... 2,236 0.167 $57.55 $21,494
In-house attorney............................... 1,904 0.167 130.45 41,474
Outsourced attorney............................. 1,904 0.167 223.38 71,019
---------------------------------------------------------------
Total....................................... 6,044 .............. .............. 133,987
----------------------------------------------------------------------------------------------------------------
* Affected Population: HR specialist, 2,236 = 6,044 x (100%-63%), Attorney 1,904 = 6044 x 63% x 0.5.
** Compensation Rate: HR specialist ($39.42), Attorney ($89.35). See BLS, DOL, Occupational Employment and Wage
Statistics, Occupational Employment and Wages, May 2025, 13-1071 Human Resources Specialists, 23-1011 Lawyers,
<a href="https://www.bls.gov/news.release/archives/ocwage_05152026.htm">https://www.bls.gov/news.release/archives/ocwage_05152026.htm</a> (last modified June. 1, 2026).

[[Page 65129]]

The benefits-to-wage multiplier is calculated as follows: (Total Employee Compensation per hour) / (Wages and
Salaries per hour) = ($48.78 Total Employee Compensation per hour) / ($33.45 Wages and Salaries per hour) =
1.46 (rounded). See BLS, DOL, Economic News Release, Employer Costs for Employee Compensation--December 2025,
Table 1. Employer Costs for Employee Compensation by ownership [Dec. 2025] (Mar. 20, 2026), <a href="https://www.bls.gov/news.release/archives/ecec_03202026.pdf">https://www.bls.gov/news.release/archives/ecec_03202026.pdf</a>.
The Employer Costs for Employee Compensation measures the average cost to employers for wages and salaries and
benefits per employee hour worked.
Calculation: $39.42 x 1.46 = $57.55 total wage rate for HR specialists.
Calculation: $89.35 x 1.46 = $130.45 total wage rate for In-house attorney.
Calculation: $89.35 x 2.5 = $223.38 total wage rate for Outsourced attorney.
The DHS analysis in Exercise of Time-Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for
the H-2B Temporary Nonagricultural Worker Program, 83 FR 24905 (May 31, 2018), used a multiplier of 2.5 to
convert in-house attorney wages to the cost of outsourced attorney wages.
The U.S. Immigration and Customs Enforcement rule, Final Small Entity Impact Analysis: `Safe-Harbor Procedures
for Employers Who Receive a No-Match Letter' at G-4 (Aug. 25, 2008), <a href="https://www.regulations.gov/document/ICEB-2006-0004-0922">https://www.regulations.gov/document/ICEB-2006-0004-0922</a>, also used a multiplier of 2.5 to convert in-house attorney wages to the cost of outsourced
attorney based on information received in public comment to that rule. The methodology used in that analysis
remains sound for using 2.5 as a multiplier for outsourced labor wages in this rule.
Note: Totals may not sum due to rounding. Calculations use unrounded values.

Unquantified Costs
Petitioners may experience longer adjudication times and increased
uncertainty regarding continued employment when seeking extensions of
stay and petition validity. Based on the average of the last four
fiscal years (FY 2022-FY 2025), the difference in processing time
between petitions with and without an RFE is 64 days; therefore, we use
the additional processing time associated with petitions that receive
an RFE, which is 64 calendar days.\27\ These longer timelines can delay
the final decision, making it difficult for workers and employers to
plan project timelines, staffing levels, and work assignments. During
this extended period, petitioners may face added uncertainty as to the
beneficiary's longer-term employment authorization and status, which
could create operational challenges for employers, such as workforce
planning and project scheduling and increase stress for workers who may
have to wait significantly longer for clarity on their ability to
continue employment beyond that already authorized. In cases where a
petition to extend the beneficiary's stay has been timely filed, if the
petition remained pending when the beneficiary's status expired, the
beneficiary may remain in the United States in an authorized period of
stay while awaiting the adjudication of the petition filed on their
behalf and may be eligible to continue to work. See, e.g., 8 CFR
274a.12(b)(20). The costs to beneficiaries then would be more related
to unpredictability regarding when their petition is adjudicated.
---------------------------------------------------------------------------

\27\ Source: USCIS CDAO, CLAIMS3 & ELIS, PAER #21508, queried
May 2026. Processing time is measured as the number of days between
the petition receipt date and the date the initial decision is made.
From FY 2022 to FY 2025, the average of the median processing times
was 76 days for petitions with an RFE and 12 days for petitions
without an RFE, a difference of 64 days.
---------------------------------------------------------------------------

DHS recognizes that removing deference may lead petitioners to
devote additional time and resources to preparing extension petitions.
USCIS did not find evidence that the Form G-28 filing rate increased as
a result of removing deference.\28\ However, petitioners may take
additional steps to ensure that submissions are complete and well-
organized at the outset, instead of merely relying on a prior approval.
These efforts may help petitioners satisfy their burden of proof and
may reduce the likelihood of deficiencies, but they may also impose
unquantified costs in the form of additional staff time, attorney time,
or other preparation costs. DHS is unable to quantify this cost with
the available data.
---------------------------------------------------------------------------

\28\ To assess this potential impact, DHS examined the share of
petitions that were filed with a Form G-28, which indicates attorney
or accredited representative involvement. The share increased for
both deference-eligible petitions, the treated group, and deference
non-eligible petitions, the control group, from the pre-policy
period, when deference was in effect, to the policy period, when
deference was not in effect. However, the increase was smaller for
treated petitions than for control petitions, resulting in a
difference-in-differences estimate of close to zero percentage
points. This suggests that, although G-28 usage among petitions
increased overall, the increase was not greater for the group
affected by the no-deference policy. Therefore, DHS does not have
evidence that removing deference would cause a meaningful increase
in petitioners' reliance on attorneys beyond the costs already
considered in the analysis.
---------------------------------------------------------------------------

Unquantified Benefits
Removing 8 CFR 214.1(c)(5) and the deference policy would clarify
and reinforce that the statutory burden of proof remains on the
petitioner rather than on the agency, consistent with the statute. See
INA sec. 291, 8 U.S.C. 1361; Matter of Chawathe, 25 I. & N. Dec. 369,
375 n.7 (USCIS AAO, 2010) (``The burden of proving eligibility for the
benefit sought remains entirely with the applicant''). This benefits
the agency by underscoring that officers are not obligated to approve
subsequent petitions seeking immigration benefits where eligibility has
not been demonstrated, merely because of prior approval. Removing the
deference policy would also compel adjudication officers not to rely on
incomplete or outdated facts, and supports more accurate, record-based
decisions. Clear allocation of the burden of proof can also promote
more complete, better-organized filings, and may reduce the risk of
erroneous approvals of extension petitions.
Moreover, removing deference would reinforce DHS's authority to
conduct a full, current review of the evidence in each petition,
improving the ability to identify ineligibility or indicators of fraud.
When officers need not defer to prior approvals, they can better
evaluate documentation and eligibility criteria based on updated
information, policies, or patterns that may not have been apparent at
the time of the earlier decision. This full-scope review could help
reveal discrepancies between past and current filings, highlight
evolving risk indicators, and identify potential mistakes in prior
decisions. This approach would strengthen program integrity by helping
the agency to correct mistakes, detect emerging fraud schemes, and
refine guidance and training based on issues identified through ongoing
examination of repeat filers.
Removing deference would also benefit the public and the broader
immigration system by reinforcing that each petition is evaluated on
the current record, which could increase confidence in the integrity of
adjudications. Members of the public would have more assurance that
approvals are not simply carried forward from prior decisions but are
based on current facts and applicable standards. At the same time,
removing deference would maintain the integrity of the immigration
system and advance policies that better protect the interests of U.S.
workers by supporting more accurate, evidence-driven decisions and
reducing the risk that outdated or erroneous prior approvals continue
to serve as the basis for granting immigration benefits.

[[Page 65130]]

Alternatives Considered
This proposed rule seeks to clarify and reinforce that the
statutory burden of proof remains on the petitioner, encourage a more
thorough review of each petition and its supporting evidence, and
better protect the integrity of the legal immigration system. DHS
believes that removing deference would impose relatively small
additional compliance costs and that the resulting benefits it provides
justify these costs. Therefore, DHS believes that removing the
deference provision for extension of stay petitions would be the most
effective way to achieve the goals of this rulemaking.
DHS considered an alternative to revise the deference regulation to
more clearly state that USCIS has discretion whether to apply
deference. DHS is not proposing this alternative because it would
likely create unnecessary confusion and uncertainty for both
petitioners and USCIS. Instead, DHS believes that removing deference
entirely is the most practical alternative to enhance program
integrity, including by ensuring that the burden remains on the
petitioner to establish the nonimmigrant alien worker's eligibility to
continue working in the United States, and that USCIS adjudicators
thoroughly review each nonimmigrant worker extension request on its own
merits before granting the benefit. DHS did not consider other
alternatives. DHS welcomes public comments on this issue.
Total Quantified Costs of the Proposed Regulatory Changes
In this section, DHS presents the total quantified costs over 10-
year analysis period and the corresponding annualized costs. DHS
estimates the annual cost to be $133,987. As shown in Table 5, the
total undiscounted cost is estimated to be $1,339,870 over the 10-year
period. We estimate that, over the 10-year period and using a 3 percent
discount rate, the total cost would be approximately $1,142,936, and
using a 7 percent discount rate, the total cost would be about
$941,069. The annualized cost is estimated to be $133,987 at both the 3
percent and 7 percent discount rates.

Table 5--Discounted Costs Over a 10-Year Period of Analysis
------------------------------------------------------------------------
10-Year undiscounted Total estimated costs $1,339,870
------------------------------------------------------------------------
Discounted at 3 Discounted at 7
Year percent percent
------------------------------------------------------------------------
1............................... $130,084 $125,221
2............................... 126,296 117,029
3............................... 122,617 109,373
4............................... 119,046 102,218
5............................... 115,578 95,531
6............................... 112,212 89,281
7............................... 108,944 83,440
8............................... 105,771 77,982
9............................... 102,690 72,880
10.............................. 99,699 68,112
---------------------------------------
10-year Total............... 1,142,936 941,069
Annualized...................... 133,987 133,987
------------------------------------------------------------------------
Source: USCIS Analysis.

Costs to the Federal Government
DHS is proposing to remove 8 CFR 214.1(c)(5) and the deference
policy which may increase USCIS operational costs by requiring officers
to assess eligibility for petitions that previously would have
benefitted from deference, even when the underlying facts and
circumstances remain unchanged. This additional effort would lead to
greater use of adjudicative actions, particularly in the form of RFEs,
which further increase agency resource demands and contribute to
backlogs. Preparing and issuing RFEs, and reviewing responses to RFEs,
require additional officer time, supervisory review, and administrative
support, collectively raising the overall cost and time of processing.
The INA provides for the collection of fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services, including administrative costs and services
provided without charge to certain applicants and petitioners.\29\ Fees
are established at an amount that is necessary to recover these
assigned costs, such as clerical, officer, and managerial salaries and
benefits, plus an amount to recover unassigned overhead (e.g., facility
rent, IT equipment and systems) and immigration benefits provided
without a fee charge. These costs would be captured in the fees
collected for the benefit request from petitioners. DHS established the
current fees in its FY 2024 fee rule based on empirical cost estimates.
DHS notes that if this rule, if finalized as proposed, would increase
USCIS' costs, then the fee schedule adjustment would be determined at
USCIS' next comprehensive biennial fee review.
---------------------------------------------------------------------------

\29\ See INA sec. 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------

B. Regulatory Flexibility Act of 1980

Initial Regulatory Flexibility Analysis
The RFA, Public Law 96-354, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 5
U.S.C. 601 through 612, requires Federal agencies to consider the
potential impact of regulations on small businesses, small governmental
jurisdictions, and small organizations during the development of their
rules. The term ``small entities'' comprises small businesses, not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.\30\ An ``individual'' is not
considered a small entity and costs to an individual are not considered
a small entity impact for RFA purposes. In addition, the courts have
held that the RFA requires an agency to perform a regulatory
flexibility analysis of small entity impacts only when a rule directly

[[Page 65131]]

regulates small entities.\31\ Consequently, indirect impacts from a
rule on a small entity are not considered as costs for RFA purposes.
This proposed rule would affect small entities that submit Form I-129,
Petition for a Nonimmigrant Worker. Consequently, DHS has prepared an
initial regulatory flexibility analysis below for public comment.
---------------------------------------------------------------------------

\30\ A small business is defined as any independently owned and
operated business not dominant in its field that qualifies as a
small business per the Small Business Act, 15 U.S.C. 632.
\31\ See U.S. Small Business Administration (SBA), ``A Guide for
Government Agencies: How to Comply with the Regulatory Flexibility
Act.'' at 22 (Aug. 2017), <a href="https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf">https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf</a>. In Aeronautical
Repair Station Association, Inc. v. FAA, the D.C. Circuit made clear
that an entity is not ``subject to'' a regulation unless the
regulation ``imposes responsibilities directly on'' the entity. 494
F.3d 161, 177 (D.C. Cir. 2007); see also Mid-Tex Elec. Coop., Inc.
v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985) (holding that the RFA's
requirements apply only to ``small entities that would be directly
regulated'' by a challenged rule).
---------------------------------------------------------------------------

1. A Description of the Reason Why the Action by the Agency Is Being
Considered
The purpose of this proposed rule is to remove 8 CFR 214.1(c)(5)
and the deference policy which instructs USCIS officers to give
deference to a prior determination of the petitioner's, applicant's or
beneficiary's eligibility when adjudicating a request filed on Form I-
129, Petition for a Nonimmigrant Worker, involving the same parties and
the same underlying facts, unless there was a material error, a
material change, or new material information that adversely impacts
eligibility. This proposed change would better align the regulation
with the statute, which places the burden of proof in establishing
eligibility on the petitioner.
2. A Statement of the Objectives of, and Legal Basis for, the Proposed
Rule
DHS's objectives and legal authority for this proposed rule are
discussed earlier in the preamble.
3. A Description and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Changes Would Apply
For this analysis, DHS used internal data for employers filing H-1B
extension petitions for FY 2025.\32\ The proposed rule would affect
extension petitions filed on Form I-129 for multiple nonimmigrant
classifications. For purposes of this analysis, DHS relied on H-1B
petitioner data as the best available source of employer-level
information. Form I-129 is used for several nonimmigrant worker
classifications; however, DHS does not have sufficiently reliable
employer-level data for all non-H-1B classifications to conduct a
comparable small entity analysis across all Form I-129 petitioners. H-
1B petitions account for more than 75 percent of all Form I-129 filings
and include employer-level data that allow DHS to evaluate petitioner
size. Because H-1B filings constitute the majority of Form I-129
petitions and provide the most reliable available data for assessing
small entity impacts, DHS used H-1B petitioner data as a reasonable
proxy for the broader Form I-129 petitioner population. DHS merged the
internal employer data with the Small Business Administration (SBA)
table of size standards \33\ to identify small entities.
---------------------------------------------------------------------------

\32\ USCIS CDAO, CLAIMS3 and ELIS, queried 4/2026, TRK #21030.
\33\ SBA, ``Table of Size Standards'' (Mar. 17, 2023), <a href="https://www.sba.gov/document/support-table-size-standards">https://www.sba.gov/document/support-table-size-standards</a>.
---------------------------------------------------------------------------

To determine whether an entity is small for purposes of the RFA,
DHS first identified the entity's North American Industry
Classification System (NAICS) code and then used SBA guidelines to
classify the revenue or employee count threshold for each entity. Some
entities were classified as small based on their annual revenue, and
some by their number of employees. However, DHS was unable to match
approximately 36 percent of petitions to the SBA table of size
standards because internal USCIS data did not contain the necessary
information.
Using FY 2025 internal data on actual filings of H-1B extensions
petitions, there were 165,347 petitions filed. DHS recognized 25,621
unique entities and was able to classify 16,447 as either small
entities or not small entities. DHS determined that 57 percent of the
total 16,447 classified unique entities that filed Form I-129
extensions under the H-1B classification were small entities. See Table
6.

Table 6--Number of Small Entities Filing H-1B Cap-Subject Petitions, FY 2025
----------------------------------------------------------------------------------------------------------------
Number of small Proportion of
Unique entities classified entities population (%)
----------------------------------------------------------------------------------------------------------------
16,447........................................................ 9,453 57
----------------------------------------------------------------------------------------------------------------
Source: USCIS CDAO, CLAIMS3 and ELIS, queried 4/2026, TRK #21030.

Table 7 presents the top 10 NAICS codes, ranked by the number of H-
1B extension petitions filed by small entities for FY2025. The table
shows the size standards for each NAICS code in millions of dollars or
by number of employees. Top 10 categories for small entities include:
Professional, scientific, and technical services (54), Manufacturing
(33), Educational services (61), and Pharmaceutical preparation
manufacturing (32).

Table 7--Top 10 NAICS Code for Small Entities Filing H-1B Extensions Petitions, FY2025
----------------------------------------------------------------------------------------------------------------
Size standards Size standards
NAICS code NAICS code description in millions of in number of
dollars employees
----------------------------------------------------------------------------------------------------------------
541511................................. Custom Computer Programming Services... 34 ..............
541512................................. Computer Systems Design Services....... 34 ..............
541330................................. Engineering Services................... 25.5 ..............
541519................................. Other Computer Related Services........ 34 ..............
334413................................. Semiconductor and Related Device .............. 1,250
Manufacturing.
541714................................. Research and Development in .............. 1,000
Biotechnology (except
Nanobiotechnology).
611110................................. Elementary and Secondary Schools....... 20 ..............
325412................................. Pharmaceutical Preparation .............. 1,300
Manufacturing.

[[Page 65132]]

541715................................. Research and Development in Physical, .............. 1,000
Engineering, and Life Sciences (except
Nanotechnology and Biotechnology).
541211................................. Offices of Certified Public Accountants 26.5 ..............
----------------------------------------------------------------------------------------------------------------

The unquantifiable cost of this rule is the increased uncertainty
and potential operational disruption associated with longer
adjudication times for extension petitions that receive an RFE. Based
on FY 2022 through FY 2025 data, petitions with an RFE took an average
of 64 additional calendar days to process, which may affect employer
planning for staffing, project timelines, and work assignments, as well
as workers' uncertainty regarding their longer-term employment
authorization and status.
The quantifiable cost is the opportunity cost of employer time
spent preparing and submitting additional RFEs resulting from the
expected increase in RFEs. As discussed in the ``Quantified Costs''
section of the RIA, DHS estimates that the annual increase in costs to
petitioners would be $133,987 across all affected employers for
preparing additional supporting documentation and evidence to re-
establish eligibility for an estimated 6,044 additional RFEs. DHS
identified 22,748 unique employers affected by this rule. DHS estimates
the cost per RFE by dividing the total estimated annual cost of
$133,987 by the estimated increase in RFEs attributable to this rule,
6044, resulting in an estimated cost of approximately $22 per RFE.
Because the median number of petitions filed by small entities is
one,\34\ a small entity that receives an RFE due to the removal of
deference would need to spend time submitting additional supporting
documentation and evidence and would incur an estimated cost of
approximately $22. As shown in Table 3, the RFE rate during the period
when the deference policy was not in effect was 23.4 percent. DHS
therefore estimates that approximately 23.4 percent, or 3,637, of the
small entities potentially affected by the rule would incur costs as a
result of this rule. The estimated cost would be approximately $22 per
affected small entity. Therefore, although the rule may affect a
substantial number of small entities, DHS does not expect the economic
impact on affected small entities to be significant. DHS welcomes
public comments on this analysis, particularly those comments that
would provide further insight into the quantified costs of this
proposed rule.
---------------------------------------------------------------------------

\34\ USCIS CDAO, CLAIMS3 and ELIS, queried 4/2026, TRK #21030.
---------------------------------------------------------------------------

4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will Be Subject to the Requirement
and the Types of Professional Skills Necessary for Preparation of the
Report or Record
The proposed rule would increase compliance requirements primarily
by increasing the number of RFEs associated with extension of stay
petitions, because officers would no longer apply deference to prior
approvals and would instead more thoroughly examine eligibility for
each request. As a result, certain petitioners would need to review RFE
notices more frequently, collect and organize additional supporting
documentation, and maintain more robust records of prior approvals and
ongoing eligibility. DHS anticipates that these activities would
generally be carried out by an HR specialist, an in-house attorney, or
an outsourced attorney, who would be responsible for analyzing the
RFEs, assembling the required documentation, and preparing timely,
complete responses on behalf of the petitioner.
5. An Identification of All Relevant Federal Rules, to the Extent
Practical, That May Duplicate, Overlap, or Conflict With the Proposed
Rule
DHS is unaware of any duplicative, overlapping, or conflicting
Federal rules, but invites the public to provide comments and
information regarding any such rules.
6. A Description of Any Significant Alternatives to the Proposed Rule
That Accomplish the Stated Objectives of Applicable Statutes and That
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
DHS did not consider any alternatives to the proposed rule other
than revising the regulatory text to more clearly state that USCIS has
discretion whether to apply deference. However, this alternative would
not accomplish the stated objectives of this proposed rule. DHS
believes that removing deference would impose relatively small
additional compliance costs and that the resulting benefits justify
these costs.

C. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule, that includes any
Federal mandate that may result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
tribal governments, in the aggregate, or by the private sector.\35\
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\35\ See 2 U.S.C. 1532(a).
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The inflation adjusted value of $100 million in 1995 is
approximately $211 million in 2025 based on the Consumer Price Index
for All Urban Consumers (CPI-U).\36\ This proposed rule does not
contain a Federal mandate as the term is defined under UMRA.\37\ The
requirements of title II of UMRA, therefore, do not apply, and DHS has
not prepared a statement under UMRA.
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\36\ See DOL, BLS, ``Historical Consumer Price Index for All
Urban Consumers (CPI-U): U.S. city average, all items, by month,''
(last visited July 29, 2026). Calculation of inflation: (1)
Calculate the average monthly CPI-U for the reference year (1995)
and the current year (2025); (2) Subtract reference year CPI-U from
current year CPI-U; (3) Divide the difference of the reference year
CPI-U and current year CPI-U by the reference year CPI-U; (4)
Multiply by 100 = [(Average monthly CPI-U for 2025 - Average monthly
CPI-U for 1995) / (Average monthly CPI-U for 1995)] x 100 =
[(321.943 - 152.383) / 152.383] = (169.560 / 152.383) = 1.113 x 100
= 111.3 percent = 111 percent (rounded). Calculation of inflation-
adjusted value: $100 million in 1995 dollars x 2.11= $211 million in
2025 dollars.
\37\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6).
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D. Executive Order 13132 (Federalism)

This proposed rule would not have substantial direct effects on the
States,

[[Page 65133]]

on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, Federalism, it is determined that this proposed
rule does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.

E. Executive Order 12988 (Civil Justice Reform)

This proposed rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This proposed rule was written to provide
a clear legal standard for affected conduct and was carefully reviewed
to eliminate drafting errors and ambiguities, so as to minimize
litigation and undue burden on the Federal court system. DHS has
determined that this proposed rule meets the applicable standards
provided in section 3 of E.O. 12988.

F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Government)

This proposed rule does not have ``tribal implications'' because it
will not have substantial direct effects on one or more Indian Tribes,
on the relationship between the Federal Government and Indian Tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian Tribes. Accordingly, E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, requires
no further agency action or analysis.

G. National Environmental Policy Act

DHS and its components analyze proposed regulatory actions to
determine whether the National Environmental Policy Act (NEPA), 42
U.S.C. 4321 et seq., applies to them and, if so, what degree of
analysis is required. DHS Directive 023-01 Rev. 01 ``Implementing the
National Environmental Policy Act'' (Dir. 023-01 Rev. 01) and
Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) \38\
establish the policies and procedures that DHS and its components use
to comply with NEPA.
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\38\ The Instruction Manual, which contains DHS's procedures for
implementing NEPA, was issued on November 6, 2014, and is available
at <a href="https://www.dhs.gov/ocrso/eed/epb/nepa">https://www.dhs.gov/ocrso/eed/epb/nepa</a> (last updated Apr. 14,
2025).
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NEPA allows Federal agencies to establish, in their NEPA
implementing procedures, categories of actions (``categorical
exclusions'') that experience has shown do not, individually or
cumulatively, have a significant effect on the human environment and,
therefore, do not require an environmental assessment or environmental
impact statement. See 42 U.S.C. 4336(a)(2), 4336e(1). The Instruction
Manual, Appendix A lists the DHS Categorical Exclusions.\39\
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\39\ See Appendix A, Table 1.
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Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) the entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect.\40\ DHS is proposing
to remove a regulatory provision at 8 CFR 214.1(c)(5) codifying
deference to certain eligibility determinations to better align the
regulation with the statute and better ensure the integrity of the
immigration system, including the interests of U.S. workers. This
proposed change to existing DHS regulations is strictly administrative
in nature and the rule clearly fits within categorical exclusion A3(a).
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\40\ Instruction Manual 023-01 at V.B(2)(a)-(c).
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Accordingly, DHS finds that the proposed amendments to current
regulations clearly fits within categorical exclusion A3 established in
DHS's NEPA implementing procedures as an administrative change with no
change in environmental effect, is not part of a larger Federal action,
and does not present extraordinary circumstances that create the
potential for a significant environmental effect. See Instruction
Manual 023-01 at V.B(2)(a)-(c).

H. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-
3512, DHS must submit to the Office of Management and Budget (OMB) for
review and approval, any reporting requirements inherent in a rule,
unless they are exempt. This notice of proposed rulemaking does not
impose any new reporting or recordkeeping requirements under the
Paperwork Reduction Act.
However, this notice of proposed rulemaking requires the use of
USCIS Form I-129, Petition for a Nonimmigrant Worker. This form has
previously been approved by OMB under the Paperwork Reduction Act. The
OMB control number for this information collection is 1615-0009.

List of Subjects in 8 CFR Part 214

Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.

Accordingly, DHS proposes to amend chapter I of title 8 of the Code
of Federal Regulations as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1188, 1221, 1281, 1282, 1301-1305, 1357, and
1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-
386, 114 Stat. 1477-1480; section 141 of the Compacts of Free
Association with the Federated States of Micronesia and the Republic
of the Marshall Islands, and with the Government of Palau, 48 U.S.C.
1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2;
Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).

0
2. Amend Sec. 214.1 by:
0
a. Removing and reserving paragraph (c)(5).
The revision reads as follows:

Sec. 214.1 Requirements for admission, extension, and maintenance of
status.

* * * * *
(c) * * *
(5) [Reserved]
* * * * *

Markwayne Mullin,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2026-20941 Filed 10-13-26; 8:45 am]
BILLING CODE 9111-97-P

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