Labor & Employment Law Daily Wrap Up, IMMIGRATION NEWS—DHS proposes ending USCIS deference policy for nonimmigrant worker extensions, (Oct 13, 2026)

By Brandi O. Brown, J.D.

It has also issued a final rule ending the practice of automatically extending the validity of employment authorization documents (Forms I-766 or EADs) for aliens who have timely filed an application to renew their EAD in certain employment authorization categories.

The Department of Homeland Security is proposing to eliminate a Biden-era regulation requiring immigration officers to give weight to prior approvals when adjudicating many requests to extend nonimmigrant worker status. It is also publishing a final rule on removal of automatic extensions for certain employment authorization documents.

Deference rulemaking. The proposed rulemaking, “Removing Deference to Prior USCIS Determinations of Eligibility,” scheduled for publication on October 14, would remove a provision codified in 2024 that generally directs USCIS to defer to an earlier eligibility determination when reviewing a subsequent Form I-129 petition involving the same parties and underlying facts. Under current regulations, officers are expected to follow prior determinations unless they identify a material error involved in the prior approval, a material change in circumstances or eligibility requirements, or new material information that adversely impacts eligibility.

Burden misplaced, says agency. DHS said it now believes the practical effect of that requirement is inconsistent with longstanding immigration law placing the burden of proving eligibility on the petitioner instead of the government. The agency contends that deference effectively requires adjudicators to justify departing from a prior approval rather than requiring employers to establish eligibility anew. It argues that the deference policy has created a default assumption that prior approvals are correct.

The proposal would apply to all benefit requests filed using Form I-129, the petition used for a wide range of nonimmigrant worker classifications, including H-1B, H-2B, and several other categories.

No more deference. DHS emphasized that eliminating the regulation would not prohibit officers from considering prior approvals. Instead, it would remove the requirement that adjudicators begin their review from a position of deference. Officers would continue to evaluate each filing on its own record and could reach the same result as an earlier adjudication if the evidence supports that outcome.

History of flip-flops. The proposal is the latest reversal in a long-running debate over how USCIS should handle extension petitions. The agency first adopted a deference policy through guidance in 2004, rescinded it in 2017 during President Donald Trump's first administration, restored it in 2021 during the Biden administration, and formally codified it as a regulation in the H-1B modernization rule issued in December 2024.

More extensive fact-finding. DHS now believes the policy may discourage officers from conducting full reviews of extension petitions. According to the agency, adjudicators may be less likely to request additional evidence if they assume an earlier approval was correct. The agency pointed to internal data showing request-for-evidence rates increased after the deference policy was rescinded in 2017, which DHS said suggests officers engaged in more extensive fact-finding when they were not required to defer to prior determinations.

Less error persistence. The agency also argued that deference can create risks for program integrity by allowing errors to persist across multiple filings. DHS said employers could be incentivized to rely on a favorable prior approval even if circumstances have changed or if the original petition contained inaccurate information.

As part of its justification, DHS cited agency site-visit data indicating higher rates of identified fraud and noncompliance in H-1B and L-1A extension cases during fiscal years when the deference policy was in place than during years when it was not. The agency acknowledged other factors may have contributed to those trends.

Expectations and costs. DHS acknowledged that some employers and workers may have developed expectations based on the existing framework but said any reliance interests are limited because deference does not guarantee approval and its removal would not alter the substantive eligibility standards governing visa classifications.

DHS projects eliminating deference would result in roughly 6,044 additional requests for evidence annually, producing about $133,987 in added yearly costs for petitioners. It also expects longer adjudication times and increased uncertainty for employers and workers because petitions that receive RFEs take longer to resolve.

Comments on the proposed rule will be due 30 days after publication in the Federal Register.

Final rule on EAD renewals. DHS is also publishing in tomorrow’s Federal Register the finalized rule eliminating automatic extensions of employment authorization documents (EADs) for most workers who file timely EAD renewal applications. The rule adopts, without changes, an October 2025 interim final rule that ended the longstanding practice of automatically extending expired EADs while renewal requests were pending.

Under the final rule, applicants who file EAD renewal requests on or after October 30, 2025, generally will no longer receive an automatic extension of employment authorization or EAD validity. Instead, they must wait for USCIS to approve the renewal before continuing employment, unless another law or specific federal notice provides an extension. Workers who filed renewal applications before October 30, 2025, retain eligibility for previously granted automatic extensions of up to 540 days.

DHS said the change is intended to strengthen benefit integrity and national security and argued that the prior system allowed individuals to remain work-authorized based solely on a pending application, before USCIS completed background checks and adjudication.

Consequences and costs. The agency acknowledged concerns raised by employers, immigration advocates, workers, and state and local governments about potential job losses, income disruptions, labor shortages, and economic consequences. However, it concluded that those concerns were outweighed by the need to ensure that employment authorization is granted only after renewed screening and eligibility determinations.

DHS estimates the rule could cause between about 20,000 and 33,000 EAD holders to experience temporary work authorization lapses during an 18-month period beginning in 2027, potentially generating employer productivity and turnover costs exceeding $450 million. However, the agency maintained that the security and program-integrity benefits justify the change.

MainStory: TopStory ImmigrationNews FederalRegulations Immigration AgencyNews GCNNews