United States: Trump Administration Again Proposes Elimination of Deference to Prior Approvals of Immigration Petitions
October 13, 2026
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In 2017, during the first Trump Administration, USCIS rescinded the deference policy and gave officers broader authority to readjudicate a foreign beneficiary’s eligibility for a nonimmigrant classification each time an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.

