NewsFlash! DHS Proposes to End Deference to Prior Nonimmigrant Worker Petition Approvals

The U.S. Department of Homeland Security (DHS) has issued a proposed rule that would eliminate the regulation requiring U.S. Citizenship and Immigration Services (USCIS) generally to defer to an earlier eligibility determination when reviewing a Form I-129 filing involving the same parties and underlying facts. Under the current rule, USCIS generally gives deference unless there was a material error, a material change, or new adverse material information. The proposed change would affect benefit requests filed on Form I-129, including extensions of previously approved nonimmigrant worker petitions. Officers could still consider a prior approval, but would not be required to begin their review by deferring to it. The proposed rule is scheduled for publication in the Federal Register on October 14, 2026.

This is only a proposal. The existing deference regulation remains in place unless and until DHS finalizes a change. Employers should continue to submit evidence establishing eligibility in each filing rather than rely on a prior approval alone. DHS is inviting public comments for 30 days after publication; the official Federal Register notice will confirm the deadline. Murthy Law Firm is reviewing the proposal and will provide further analysis as developments warrant.

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