On October 14, 2026, the Department of Homeland Security (DHS) published a proposed rule, “Removing Deference to Prior USCIS Determinations of Eligibility”. The proposal would remove the regulatory requirement for U.S. Citizenship and Immigration Services (USCIS) to defer to certain prior eligibility determinations when reviewing later Form I-129 requests involving the same parties and underlying facts. If finalized, it would change the starting point for USCIS review of those requests. Written comments may be submitted through November 13, 2026, before DHS decides whether to issue a final rule.
The proposal is not a final rule, and the current regulation remains in effect. It would not invalidate prior approvals or alter the underlying eligibility standards for affected classifications.
What the Proposed Rule Would Change
Under the current regulation, USCIS generally gives deference to a prior eligibility determination when a new Form I-129 request involves the same parties and facts, unless the earlier approval involved material error, circumstances or requirements materially changed, or new material information adversely affects eligibility.
Deference has never relieved applicants of their burden of proof. Eligibility must be established at filing and maintained through adjudication, regardless of a prior approval. The proposal would remove the requirement that officers begin from a position of deference. It would not prohibit officers from considering an earlier approval where relevant. In DHS’s framing, the change concerns the weight of a prior decision, not USCIS’s authority to review eligibility.
The proposal would apply broadly across Form I-129 classifications, including E-1, E-2, E-3, H-1B, L-1, O-1, P, R-1, and TN, among others. Removing deference would not create new investment thresholds, managerial tests, or O-1 evidentiary criteria. It would change the posture of review, not the substantive rules being applied.
Two existing limits are worth noting. First, USCIS policy already provides that USCIS considers, but does not defer to, eligibility determinations made by the Department of State or Customs and Border Protection. For many E-2 investors and some L-1 transferee, the most recent decision may not be a USCIS determination at all. Second, deference already applies only where the parties and facts are unchanged, so cases based on new activities or changed terms fall outside the current framework regardless.
Why This Matters for E-2, L-1, and O-1
The proposal’s effect depends on the classification and the nature of the earlier decision.
For E-2 treaty investors, where USCIS made the prior determination, removing required deference could permit an officer to reassess evidence of the investment, enterprise, ownership, or investor’s role when relevant to the current request. An officer could reach the same conclusion as before; the earlier finding simply would no longer serve as a required starting point. Reliance interests may be especially salient where substantial capital has already been committed to a U.S. enterprise.
For L-1 intracompany transferee, an officer could revisit whether the record supports managerial or executive duties (L-1A) or specialized knowledge (L-1B), along with qualifying employment abroad and the corporate relationship. The underlying legal limits would remain. Reviewing historical evidence would not require a new year of qualifying work abroad for each extension, and new-office extensions already require specific evidence of the U.S. operation’s first-year activities, staffing, and finances.
For O-1 individuals of extraordinary ability, the proposal may present a direct deference question because extensions follow a prior USCIS petition and involve qualitative judgments. The issues potentially subject to renewed review include whether coverage appeared in major media, whether a role was critical, whether compensation was high relative to peers, and whether the record shows that acclaim has been sustained. Without required deference, an officer could reach a different conclusion on a record another officer previously accepted.
The Rationale and the Question of Reliance
DHS offers three stated reasons for the proposal: restoring what it describes as the proper allocation of the burden of proof, strengthening officers fact-finding authority, and enhancing program integrity. To support the integrity rationale, it cites site-visit data from H-1B and L-1A extension cases, while acknowledging that other factors may have contributed and that the figures are not program-wide rates. The proposal provides no comparable data for E-2, O-1, or L-1B cases.
The proposal also departs from DHS’s 2024 rationale, which described deference as promoting consistency, efficiency, and predictability. DHS recognizes that employers and workers may have relied on prior approvals, but concludes that those reliance interests are limited and outweighed by its asserted program-integrity concerns.
What Remains Unresolved
Several practical questions remain open, including the effective date of any final rule, treatment of pending requests, and the form of any revised USCIS guidance. For now, the current regulation governs. Removing deference would not change substantive eligibility standards or automatically invalidate prior approvals. Whether and how DHS finalizes the change remains unresolved.
Have Questions About Your Case?
If you are planning an E-2, L-1, or O-1 extension and would like to discuss how this proposal may affect a future filing, schedule an evaluation with Robinson Immigration Law.
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This article is provided for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. It discusses a proposed rule that is not currently in effect and may change. Readers should consult current DHS and USCIS guidance and qualified immigration counsel regarding their specific circumstances.