• Insights

United States: Trump Administration Again Proposes Elimination of Deference to Prior Approvals of Immigration Petitions

October 13, 2026

insight-news-default

Country / Territory

  • United StatesUnited States

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

At a glance

  • A new proposed regulation seeks to eliminate the longstanding USCIS principle of deference to its prior approval of immigration filings on Form I-129, the petition for nonimmigrant workers.  The proposal is the Trump Administration’s third attempt to eliminate deference.
  • If implemented, the regulation is likely to spur longer processing times and an increase in requests for evidence and denials of Form I-129 extensions of stay, which could make it more difficult for employers to retain foreign sponsored talent.
  • DHS will accept public comments on the proposed regulation for 30 days after its anticipated publication on October 14.

The issue

The Trump Administration will soon publish a proposed regulation to eliminate the longstanding USCIS principle of deference to prior approvals of immigration filings on Form I-129, the petition for nonimmigrant workers used by employers sponsoring foreign nationals for H-1B, L-1, O-1, and other temporary work visa categories.  The Administration will accept public comments on the proposal for 30 days after publication, which is expected to take place on October 14.

The proposal is the latest in a series of steps the Administration has taken to eliminate deference. If the regulation is implemented, employers are likely to see a marked increase in Form I-129 requests for evidence (RFEs) and an increased risk of denials, with a particular impact on extension of status petitions; this in turn could disrupt the ability of employers to retain sponsored foreign talent and impede projects and workforce planning.

Evolution of the deference principle

Since 2004, USCIS officers have generally been required to give deference to past I-129 petition approvals unless there was a substantial change in circumstances that affected the beneficiary’s eligibility for the nonimmigrant classification, the agency made a material error in the previous approval, or where new information adversely affected a beneficiary’s eligibility for the nonimmigrant status. 

In 2017, during the first Trump Administration, USCIS rescinded the deference policy and gave officers broader authority to readjudicate a foreign beneficiary’s eligibility for a nonimmigrant classification each time an extension request is filed – even in cases where there was no change in facts since the initial petition was approved. After the rescission, the rate of RFEs and denials of H-1B, L-1, and other nonimmigrant extensions increased significantly. 

The Biden Administration reinstated the deference policy in early 2021 and required officers to obtain supervisory approval before deviating from a prior approval on the same facts.  In late 2024, the Biden Administration codified and expanded the legacy deference policy in regulation in order to give employers greater predictability when filing Form I-129. The current deference regulation that the proposed rule seeks to eliminate applies to all Form I-129 adjudications by USCIS involving the same parties and facts, not just requests for extensions of stay.  In codifying the deference policy, the previous administration sought to make it more difficult to rescind, requiring a future administration to provide notice and an opportunity for public feedback under the rulemaking procedures of the Administrative Procedure Act.

In August 2025, the second Trump Administration proposed elimination of the deference regulation in the context of another rulemaking but did not pursue that proposal, and has instead now chosen to pursue elimination of deference through separate rulemaking.

How elimination of the deference principle could affect employers and foreign nationals

The new proposal does not have any effect on current I-129 filings.  But if it is implemented, employers are likely to see a marked increase in requests for evidence and processing times, and an increased risk of petition denials.  After the first Trump Administration rescinded the prior deference policy in 2017, the H-1B extension denial rate reached a high of 24%; the current denial rate is around 3.5%. The L-1B denial rates reached a high of 35%; the current L-1B denial rate is approximately 9%. 

DHS says that it considered promulgating a new deference regulation that would give officers discretion whether to apply deference, but opted not to take this more moderate approach.  DHS acknowledges that the regulation would increase uncertainty and potential operational disruption for sponsoring employers and nonimmigrant employees, as well as costs.

Comments from the business community will be important to advise the Administration how the elimination of deference will negatively impact U.S. competitiveness.  If your organization is interested in providing feedback, Fragomen’s Government Strategies and Compliance Group can assist.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen. 

Country / Territory

  • United StatesUnited States

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Explore more at Fragomen

Blog post

Moving Talent, Moving Families: Navigating Family Reunification in Europe

Senior Manager Andreia Ghimis and Senior Immigration Consultant Louise Farren explore how family reunification rules across Europe can affect international moves and why employers should assess family eligibility, immigration requirements and likely timelines alongside an employee’s work authorization.

Learn more

Media mentions

Business Insider: How Would the $70,000 Fee on International Students Working in the US Impact Schools and Grads? 2 Lawyers Break It Down.

Partner Aaron Blumberg discusses how a proposed $70,000 fee for international students seeking US work authorization could affect students, universities and employers.

Learn more

Blog post

How to Qualify for Permanent Residence and Polish Citizenship

Poland Immigration Strategy Director Tomasz Rogala and Senior Associate Tomasz Rdzanek outline the principal pathways to permanent residence and Polish citizenship, including key residence, language and income considerations and potential future reforms.

Learn more

Fragomen news

Comment on USCIS Mandatory Electronic Filing RuleLearn more

Fragomen news

Fragomen Collaboration Selected as 2026 European Labour Authority Good Practice

Fragomen, together with SICPA and Deutsche Rentenversicherung Bund, has been selected by the European Labour Authority as a 2026 Good Practice for an EU-funded WE BUILD use case exploring how digital identity solutions could help transform PD A1 processes and support cross-border labour mobility in Europe.

Learn more

Media mentions

The Caterer: Right to Work Scheme: Have You Carried Out Checks on Temporary Staff?

Senior Manager Louise Senior highlights how expanded UK right to work requirements will affect hospitality businesses using temporary and contingent workers.

Learn more

Media mentions

Citeline: The People Behind The Pipeline: How The Global Race For Talent Is Reshaping Pharma

Partners Rajiv Naik and Hyla Kaplan Rosenberg explore how global talent policies are reshaping the biopharma industry.

Learn more

Video

Healthcare Horizons: Open Enrollment - a J-1 Trap? | #MobilityMinute

Counsel Christopher L. Wendt discusses why J-1 exchange visitors should carefully evaluate health insurance options during open enrollment and how a proposed Department of State rule could increase the consequences of selecting coverage that does not meet applicable requirements.

Learn more

Fragomen news

2026 年9月アメリカ移民法ダイジェストLearn more

Media mentions

Scottish Legal News: Scotland Needs Immigration Rules Built for Scotland’s Economy

Director Kelly Hardman examines proposals for a more tailored immigration framework in Scotland that reflects the country’s economic, workforce and demographic needs.

Learn more

Media mentions

Veranda: Want to Get a Second Passport? Here Are the 3 Universal Rules You Need to Know

Practice Leader Olga Nechita outlines common pathways to obtaining a second passport and key considerations for prospective applicants.

Learn more

Blog post

Malta Citizenship by Merit and Vision 2050: Who May Qualify and What Contributions Matter?

Director Isobel Neilson and Manager Sophie Jo Wasson examine how Malta’s Citizenship by Merit framework considers exceptional achievement and contribution alongside the country’s long-term priorities under Vision 2050, and what applicants should consider when developing a credible case.

Learn more

Blog post

Moving Talent, Moving Families: Navigating Family Reunification in Europe

Senior Manager Andreia Ghimis and Senior Immigration Consultant Louise Farren explore how family reunification rules across Europe can affect international moves and why employers should assess family eligibility, immigration requirements and likely timelines alongside an employee’s work authorization.

Learn more

Media mentions

Business Insider: How Would the $70,000 Fee on International Students Working in the US Impact Schools and Grads? 2 Lawyers Break It Down.

Partner Aaron Blumberg discusses how a proposed $70,000 fee for international students seeking US work authorization could affect students, universities and employers.

Learn more

Blog post

How to Qualify for Permanent Residence and Polish Citizenship

Poland Immigration Strategy Director Tomasz Rogala and Senior Associate Tomasz Rdzanek outline the principal pathways to permanent residence and Polish citizenship, including key residence, language and income considerations and potential future reforms.

Learn more

Fragomen news

Comment on USCIS Mandatory Electronic Filing RuleLearn more

Fragomen news

Fragomen Collaboration Selected as 2026 European Labour Authority Good Practice

Fragomen, together with SICPA and Deutsche Rentenversicherung Bund, has been selected by the European Labour Authority as a 2026 Good Practice for an EU-funded WE BUILD use case exploring how digital identity solutions could help transform PD A1 processes and support cross-border labour mobility in Europe.

Learn more

Media mentions

The Caterer: Right to Work Scheme: Have You Carried Out Checks on Temporary Staff?

Senior Manager Louise Senior highlights how expanded UK right to work requirements will affect hospitality businesses using temporary and contingent workers.

Learn more

Media mentions

Citeline: The People Behind The Pipeline: How The Global Race For Talent Is Reshaping Pharma

Partners Rajiv Naik and Hyla Kaplan Rosenberg explore how global talent policies are reshaping the biopharma industry.

Learn more

Video

Healthcare Horizons: Open Enrollment - a J-1 Trap? | #MobilityMinute

Counsel Christopher L. Wendt discusses why J-1 exchange visitors should carefully evaluate health insurance options during open enrollment and how a proposed Department of State rule could increase the consequences of selecting coverage that does not meet applicable requirements.

Learn more

Fragomen news

2026 年9月アメリカ移民法ダイジェストLearn more

Media mentions

Scottish Legal News: Scotland Needs Immigration Rules Built for Scotland’s Economy

Director Kelly Hardman examines proposals for a more tailored immigration framework in Scotland that reflects the country’s economic, workforce and demographic needs.

Learn more

Media mentions

Veranda: Want to Get a Second Passport? Here Are the 3 Universal Rules You Need to Know

Practice Leader Olga Nechita outlines common pathways to obtaining a second passport and key considerations for prospective applicants.

Learn more

Blog post

Malta Citizenship by Merit and Vision 2050: Who May Qualify and What Contributions Matter?

Director Isobel Neilson and Manager Sophie Jo Wasson examine how Malta’s Citizenship by Merit framework considers exceptional achievement and contribution alongside the country’s long-term priorities under Vision 2050, and what applicants should consider when developing a credible case.

Learn more
Fragomen.com home
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
Search Fragomen.com
  • Our Services
    For EmployersFor IndividualsBy IndustryCase Studies
  • Our Tech & Innovation
  • Our People
  • Our Insights
    Worldwide Immigration Trends ReportsMagellan SeriesImmigration AlertsEventsMedia MentionsFragomen NewsBlogsPodcasts & Videos
  • Spotlights
    Travel and Mobility Considerations: Situation in the Middle EastNavigating Immigration Under the Second Trump AdministrationImmigration Matters: Your U.S. Compliance RoadmapCenter for Strategy and Applied InsightsView More
  • About Us
    About FragomenOfficesResponsible Business PracticesFirm GovernanceRecognition

Our Services

  • For Employers
  • For Individuals
  • By Industry
  • Case Studies

Our Tech & Innovation

  • Our Approach

Our People

  • Overview / Directory

Our Insights

  • Worldwide Immigration Trends Reports
  • Magellan Series
  • Immigration Alerts
  • Events
  • Media Mentions
  • Fragomen News
  • Blogs
  • Podcasts & Videos

Spotlights

  • Travel and Mobility Considerations: Situation in the Middle East
  • Navigating Immigration Under the Second Trump Administration
  • Immigration Matters: Your U.S. Compliance Roadmap
  • Center for Strategy and Applied Insights
  • View More

About Us

  • About Fragomen
  • Offices
  • Responsible Business Practices
  • Firm Governance
  • Recognition
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
Important Updates
Important Updates
October 12, 2026 | United StatesBusiness Insider: How Would the $70,000 Fee on International Students Working in the US Impact Schools and Grads? 2 Lawyers Break It Down.
October 13, 2026 | 🌐Middle East - The Latest News on Mobility and Travel Considerations
October 13, 2026 | United StatesUnited States: Trump Administration Again Proposes Elimination of Deference to Prior Approvals of Immigration Petitions
October 13, 2026 | United StatesUnited States: USCIS Reaffirms Regulation Eliminating Maximum 540-Day EAD Auto-Extension
October 13, 2026 | United StatesUnited States: What Employers Need to Know About the Government’s New PERM Investigations and Program Suspensions
October 12, 2026 | United StatesBusiness Insider: How Would the $70,000 Fee on International Students Working in the US Impact Schools and Grads? 2 Lawyers Break It Down.
October 13, 2026 | 🌐Middle East - The Latest News on Mobility and Travel Considerations
October 13, 2026 | United StatesUnited States: Trump Administration Again Proposes Elimination of Deference to Prior Approvals of Immigration Petitions
October 13, 2026 | United StatesUnited States: USCIS Reaffirms Regulation Eliminating Maximum 540-Day EAD Auto-Extension
October 13, 2026 | United StatesUnited States: What Employers Need to Know About the Government’s New PERM Investigations and Program Suspensions
October 12, 2026 | United StatesBusiness Insider: How Would the $70,000 Fee on International Students Working in the US Impact Schools and Grads? 2 Lawyers Break It Down.
Subscribe

Stay in touch

Subscribe to receive our latest immigration alerts

Subscribe

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • AI Transparency Statement
  • UK Regulatory Requirements

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • AI Transparency Statement
  • UK Regulatory Requirements

Have a question?

Contact Us
  • LinkedIn
  • Youtube
  • Instagram
  • Facebook
  • TikTok
  • Twitter

© 2026 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

Please note that the content made available on this site is not intended for visitors / customers located in the province of Quebec, and the information provided is not applicable to the Quebec market. To access relevant information that applies to the Quebec market, please click here.