On October 14, 2026, the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) published a proposed rule in the Federal Register titled “Removing Deference to Prior USCIS Determinations of Eligibility” (91 FR 65119, docket USCIS-2026-0529). It would delete 8 CFR 214.1(c)(5), the regulation that requires officers to give deference to a prior approval.
How the current rule works
Today, when an employer files Form I-129 to extend a worker’s stay and the parties and underlying facts are the same as in an earlier approval, USCIS generally defers to that earlier decision. The exceptions are a material error in the prior approval, a material change in circumstances, or new material information that adversely affects eligibility.
The policy has gone back and forth. USCIS first set it out in an April 2004 memo, rescinded it in October 2017 and reinstated it in April 2021. In December 2024, DHS wrote it into the regulations as part of the H-1B Modernization final rule (89 FR 103054).
Who would be affected
The change would apply to every benefit request filed on Form I-129. A footnote in the proposal lists the extension classifications, including E-1 and E-2 (treaty visas, available to Polish citizens under the U.S.–Poland business and economic relations treaty), H-1B, H-2A, H-2B, L-1 intracompany transfers, O-1, P, R-1 and TN.
According to figures cited in the proposal, USCIS received an average of 688,830 Form I-129 petitions a year in fiscal years 2022–2025, and 208,429 of them were eligible for deference. DHS treats that group as the population affected by the change.
What would change in practice
Officers would no longer start from the presumption that the prior approval was correct. Each case would be judged on the current record. DHS notes that officers could still consider a prior approval where relevant and “may, of course, reach the same conclusion as in a prior decision.”
The agency estimates about 6,044 additional Requests for Evidence (RFEs) a year. Data in the proposal show an average median processing time of 76 days for petitions that received an RFE, compared with 12 days for those that did not.
DHS says the change would bring the regulations in line with the law, which puts the burden of proving eligibility on the petitioner, and would support its priorities of system integrity and protecting U.S. workers.
What it means for Polish workers and investors
Nothing changes yet. The rule is only proposed and has no effective date, and the final version may differ. Still, anyone planning an extension on a work or investor visa in the coming months may want to prepare a complete evidence package, as if filing for the first time, and allow extra time in case USCIS issues an RFE. An immigration attorney can advise on the details of a specific case.
How to comment
Comments must be submitted electronically through regulations.gov under docket USCIS-2026-0529 by November 13, 2026, before midnight Eastern Time. Comments sent by email or mail will not be considered.
Key takeaways
- USCIS proposes removing the deference rule for extensions of stay (8 CFR 214.1(c)(5)).
- It covers Form I-129 filings, including H-1B, L-1, E-1, E-2, O-1 and TN.
- It is a proposal only; current rules remain in place.
- DHS expects about 6,044 more RFEs a year.
- Comments: regulations.gov, docket USCIS-2026-0529, by November 13, 2026.
Sources: DHS/USCIS proposed rule in the Federal Register, October 14, 2026 (PDF) and docket USCIS-2026-0529 on regulations.gov.
This article is for information only and is not legal advice.
Planning to extend your stay on a work or investor visa? Talk it through with a Polish-speaking attorney from the immigration lawyers section of the Polish Pages directory.
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