A prior USCIS approval of a work visa petition could soon carry less weight, even when the employer, sponsored worker, and underlying facts remain unchanged. On October 14, 2026, the U.S. Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), proposed eliminating the rule that generally requires officers to defer to certain prior eligibility determinations in employer-sponsored Form I-129 cases.
DHS says the change would reinforce the employer’s burden to prove eligibility, strengthen review, and help USCIS identify errors in earlier approvals.
For corporate mobility teams, however, the practical challenge is providing fully documented filings that demonstrate eligibility for the extension or amendment because it would receive a fresh review even when nothing material has changed.
This is a proposal, not an effective change. Current adjudication rules remain in place unless DHS publishes a final rule. Written comments are due November 13, 2026.
The current regulation generally directs USCIS to respect a prior approval when the same employer and worker return with the same material facts. USCIS may already depart from that approval when there is a material error, a material change, or new adverse material information.
USCIS withdrew its deference policy in 2017, giving officers broader latitude to revisit eligibility in extension filings. Employers then saw more requests for evidence (RFEs), more variable outcomes, and greater difficulty forecasting case timelines across H-1B, L-1, and other work visa categories.
USCIS restored the policy in 2021, and DHS placed it in the regulations in 2024 to support more consistent decisions. The new proposal would reverse that approach and allow officers to reassess extension and amendment filings without giving required weight to the earlier approval, even when the material facts remain the same.
DHS argues that required deference shifts too much responsibility to USCIS to explain a different outcome. The employer would still carry the burden of proving eligibility under either approach. Reliance on a prior approval is therefore not a demand for guaranteed approval; it is a request for consistent adjudication when the facts have not materially changed.
No immediate process change is required. Mobility teams should monitor the rulemaking, assess where their programs rely on repeat approvals, and preserve data on RFEs, preparation time, outside counsel fees, project delays, and employee disruption.
If DHS finalizes the proposal, mobility teams should expect more scrutiny of repeat filings. Likely effects include more RFEs and Notices of Intent to Deny (NOIDs), longer and less predictable case timelines, and a greater risk of inconsistent outcomes and losses of work visa status for previously approved roles and employees.
Employers may need to submit fuller evidence packages for extensions and amendments, increasing preparation time, legal and administrative costs, and internal coordination. That can complicate staffing, onboarding, travel, succession planning, and project scheduling. Sponsored workers may face greater uncertainty about continued employment and the career and family decisions built around it.
Employers, immigration practitioners, and sponsored workers should consider submitting comments by November 13, 2026. Comments will be most useful when they document actual preparation time, costs, staffing delays, employee reliance, and operational consequences. They should also explain workable alternatives to wholesale repeal, including retaining deference while preserving USCIS authority to revisit cases involving material error, material change, or new adverse material information. DHS estimates that an additional RFE response would require only 10 minutes of time and cost an average of $22.17; employers can help the agency test that assumption against real-world experience.
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Angelo Paparelli
Partner, Vialto Law (US) LLP
Dania Khan
Manager, Vialto Partners LLP
Sam Faisal
Manager, Vialto Law (US) LLP
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