The US wants to end deference to prior approvals: E-2, L-1 and O-1 extensions will have to be proven again

In brief

• On 14 October 2026 DHS and USCIS published the proposed rule Removing Deference to Prior USCIS Determinations of Eligibility (docket USCIS-2026-0529). It deletes 8 CFR 214.1(c)(5).
• Today that provision requires deference to a prior approval when the parties and facts are unchanged. The exceptions are a material error, a material change in circumstances or new adverse information.
• The change covers every Form I-129 filing. That form is used to extend E-1, E-2, L-1, O-1, H-1B, TN, P, R and other worker classifications.
• According to USCIS, an average of 208,429 petitions a year were eligible for deference in fiscal years 2022-2025. The agency expects the share of Requests for Evidence to rise by 2.9 percentage points, about 6,044 additional RFEs a year.
• Comments are accepted until 13 November 2026. Until a final rule is issued, the current procedure applies.

USCIS officers will no longer start from trust in the prior decision

In US practice this principle is called deference to prior approvals. It works like this. If USCIS has already approved a petition and the parties and facts are the same at extension, the officer relies on the prior decision. The officer can depart from it only on one of three grounds: a material error last time, a material change in circumstances, or new information that weighs against the applicant.

Departing from it also comes with conditions. Under the USCIS Policy Manual, the officer must acknowledge the prior approval in the Request for Evidence, the Notice of Intent to Deny or the denial. The officer must explain why the prior decision is not followed, obtain supervisory approval and give the applicant a chance to respond. Each step takes time, and in practice officers more often approved an extension when the file showed no obvious problems.

The proposal deletes the provision entirely. An officer may still consider a prior approval where relevant, but no longer has to start from it. Each extension is assessed on the evidence filed now. DHS cites section 291 of the Immigration and Nationality Act: the burden of proof always rests on the applicant. In the agency's view, deference shifted that burden to the officer in practice.

The agency also considered a softer option: stating in the regulation that USCIS "may" give deference at its discretion. It rejected it. In DHS's assessment, such wording would create confusion for both applicants and officers without solving the problem.

What this means for you. A prior approval stops being an argument in itself. If something was missing from the file and it went through the first time, that gap may be spotted at extension and evidence requested.

Twenty-two years of swings: from the 2004 memo to the 2026 proposal

The principle is not new, and its history shows well how rules for US work visas change. It was first introduced by a USCIS memorandum of 23 April 2004. On 23 October 2017 another memorandum rescinded it on the same grounds heard now: the burden of proof was shifted to the agency, and officers were restricted in examining the facts. In April 2021 USCIS reinstated the principle and placed it in the Policy Manual.

The difference between the earlier turns and this one is the form of the document. Until 2024 the principle lived in internal agency guidance and could be changed by a memo overnight. In December 2024 DHS codified it in the H-1B modernization rule, which took effect on 17 January 2025. It is now a regulation, and it can only be removed by a new rule: a proposal, a comment period and a final text.

The table shows how often the approach changed and what document carried each decision.

Two conclusions follow from the table. First, deference has been removed before, and the agency has data on what happened then. The current estimate is built on that data. Second, the 2026 turn will take longer than the 2017 one. Months usually pass between a proposal and a final rule, and that time can be used to prepare.

What this means for you. A provision that in twenty-two years has been introduced, rescinded, reinstated and is now proposed for removal again cannot be the basis of a long-term plan. Building a life in the US on the expectation that an extension will go through on the strength of a prior approval is risky under any administration.

The agency expects more Requests for Evidence, not more denials

The most useful part of the proposal is USCIS's own data. The agency compared two periods: from 1 October 2013 to 11 October 2017, when deference applied, and from 12 October 2017 to 27 April 2021, when it did not. The share of extensions that received a Request for Evidence rose from 18.9% to 23.4%. For other Form I-129 filings, the rise over the same period was 1.6 points, from 31.4% to 33.0%.

DHS treats the 2.9-point gap as the effect of removing deference. Applying it to 208,429 petitions a year gives about 6,044 additional RFEs. According to USCIS, denial rates did not differ statistically between the periods with and without deference. This is an important detail: most applicants who received an RFE ultimately proved their eligibility.

The price of an RFE is time. According to USCIS data for fiscal years 2022-2025, the median time to decision was 76 days for a petition with an RFE and 12 days without one. The difference is 64 days. If a person filed for an extension on time, they remain in an authorized period of stay while the case is pending and in some cases may continue to work. But the business and the family live without clarity throughout.

The agency's second argument is site visits. For H-1B, the share of non-compliance and fraud indicators among visited worksites was 22.39% in fiscal years 2022-2025, against 16.77% in 2018-2020, when deference did not apply. For L-1A it was 24.46% against 18.37%. DHS itself acknowledges that other factors may have influenced these figures.

I disagree with one figure in the proposal. DHS estimates the additional cost to petitioners at only $133,987 a year, about $22 per RFE. The calculation assumes that responding to an RFE takes 10 minutes. For an E-2 case, where the investment, the source of funds and the company's operations must be shown again, that is far from reality. The agency itself says it could not estimate the time needed to prepare a fuller filing.

What this means for you. The agency does not forecast more denials. It forecasts a longer and more demanding path to the same approval. The money is lost not on a denial but on months of waiting and on preparing the response.

E-2 investors and L-1 managers will feel it most

Formally the rule covers every classification extended through Form I-129. The proposal lists E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, the P group, Q-1, R-1 and TN. DHS estimates that 22,748 employers are affected. But the burden will not be spread evenly: the most proof will be needed where the case rests on money and corporate structure.

The E-2 visa is the first candidate. When extending status inside the US through USCIS, the investor again shows a substantial investment, the lawful source of the funds, that the company really operates and earns more than a living for the family, and that the investor controls it. If the source of funds was proven with old bank statements the first time, and since then the bank has closed or the documents have been lost, without deference the officer is entitled to ask for them again. How the programme works is described on the page on the US E-2 visa.

For nationals of countries without a treaty with the US, the path to E-2 often runs through a second citizenship. We have covered the options via a Grenada passport and via a Turkish passport in detail. For these investors the new provision means one more requirement: the citizenship and investment documents must be in order for the whole time they live in the US, not only on the date of the first filing.

For L-1A, the transfer of a manager to a US group company, the officer will check the relationship between the companies, the managerial nature of the role and the period of employment abroad. A separate case is a new office in the US: at its extension it was always necessary to show that the office actually operates, so deference helped little there. The classification is described on the page on the L-1A visa.

O-1 holders again prove extraordinary ability at extension. If recognition was first shown with publications and awards from five years earlier, the officer may ask what has changed since then. The conditions of the classification are on the page on the O-1 visa.

What this means for you. The more money, shareholdings and corporate documents a case involves, the more work an extension without reliance on the prior decision will bring. For E-2 and L-1A this is the most sensitive part of the change.

Prepare an extension as if it were a first filing

There is no need to wait for the final rule. A file that will pass review without reliance on the prior decision will pass it now too. This is the order I recommend starting a few months before your status ends.

If your status ends within the next year, it is better to start reviewing the file now. How we handle status renewals is described on the page on residence permit renewal.

What this means for you. A complete file today insures against two risks at once: an RFE under the current rules and a review from scratch if the rule is adopted before you file.

When there is no need to hurry

The news is no reason to panic and file an extension early. There are situations in which it changes almost nothing.

• The rule has not been adopted. Until a final text appears in the Federal Register, 8 CFR 214.1(c)(5) applies. The proposal contains no transition provisions for pending cases; they should be expected in the final rule.
• You are obtaining a new E-2 visa at a consulate. The proposal changes only how USCIS adjudicates Form I-129 filings. Consular visas are issued by the Department of State under its own rules, and this text does not change them.
• Your status is valid for another two or three years. For now it is enough to keep the company's records in order and retain proof of the investment. No urgent action is needed.
• Your business has changed materially: a new company, a new investment, a new position. In that case deference would not apply even now, and the case would be reviewed afresh anyway.
• You are preparing to move to a green card under another programme. Then the decision on extending temporary status should be made together with the plan for permanent status, not separately.

Rushing with an incomplete file is more dangerous than the new provision itself. Filing before the permitted window or without the required documents gives the officer a reason for an RFE already today.

What this means for you. If your extension is more than a year away and the case is clean, one thing is enough: keep the documents in order and watch for the final rule.

Three dates and documents worth watching

The first point is 13 November 2026, the end of the comment period. Comments are filed on the federal portal regulations.gov under docket USCIS-2026-0529. The agency does not treat letters sent to DHS or USCIS as comments.

The second point is the final rule in the Federal Register. It will set the effective date and answer the main practical question: whether the new approach will apply to cases filed before that date. The proposal does not answer it.

The third point is the update to the USCIS Policy Manual, Volume 2, Part A, Chapter 4. DHS states plainly that it will change it after a final rule. This is the text officers work with every day.

What nobody knows yet: how quickly DHS will issue the final text and whether it will change after comments. In the proposal the agency itself invites comments on its cost estimate, so the figures may change.

My conclusion

The DHS proposal does not change the requirements of any visa. The size of the investment, the managerial role and the extraordinary ability criteria stay the same. What changes is the starting point of the review: it used to begin with trust in the prior decision; now it will begin with a blank page.

For an investor this means that a US visa is not a one-off approval but a status that has to be proven at every extension. The rule of trust in the prior decision has lived for twenty-two years in memos, the manual and a regulation, and its fate is being decided again. The documents that prove your eligibility last longer than any rule. They are what is worth keeping in order.

How this piece was prepared

This piece is based on the text of the DHS and USCIS proposed rule Removing Deference to Prior USCIS Determinations of Eligibility (DHS Docket No. USCIS-2026-0529, RIN 1615-AD26), placed on public inspection on 13 October 2026 and published in the Federal Register on 14 October 2026. Figures on the number of petitions, RFE rates, processing times and site visits are taken from Tables 2, 3 and 4 and the preamble of the proposal, where USCIS cites its own data queried in May 2026. The history of the principle follows the proposal and the H-1B modernization rule published on 18 December 2024 and effective from 17 January 2025. The comment deadline is calculated from the proposal: 30 days from the date of publication. This is not a legal opinion on your case.