Form I-129 is the petition employers file for H-1B, L-1, O-1 and other work visas, both the first time and for extensions. The current regulation, 8 CFR 214.1(c)(5), says that when an extension involves the same employer, worker and basic facts, USCIS generally follows its earlier decision. DHS proposes deleting that provision so USCIS decides eligibility fresh each time. The proposal was published October 14 (91 FR 65119), and anyone can comment until November 13.
Current 8 CFR 214.1(c)(5) is a “follow the earlier approval” rule, known as deference. When an I-129 extension involves the same employer, worker and basic facts, USCIS generally keeps its earlier finding on eligibility, so a new officer does not overturn it on a whim. There are exceptions: USCIS can look again if the earlier approval was a mistake, the facts changed materially or important new information appears. Applicants still submit evidence every time.
This proposal (RIN 1615-AD26) would delete that provision entirely. DHS’s reasoning is that each petition should be reviewed on its own, with the applicant proving eligibility. It moves separately from the broader H-1B reform (#07, RIN 1615-AD00) still under OIRA review.
The proposal is now in its public comment period. After comments close, DHS must read and respond to them before deciding the final text. Extension reviews change only after a final rule is published and takes effect.
If adopted as proposed, the most direct change is that even a same-employer, same-job extension could require a full new case: why the position qualifies for H-1B and why you qualify for it. USCIS would likely send more requests for evidence (letters asking for more documents), and preparation time and legal fees could go up. Your current H-1B stays valid.
You can still attach the earlier approval notice, but USCIS would no longer have to follow it.
Li has the same job at the same company, and his first three H-1B years are nearly up, so the company files an extension. Under the proposal, the officer could ask again for his degree, job duties and how the two connect, just like a first petition. Li’s current H-1B stays valid.
Preparation costs, evidence requests and uncertainty all go up. How much depends on the final text and USCIS instructions.
A company that got an L-1 approved for an employee now files to extend it. Under the proposal, the earlier approval no longer carries weight, so the company prepares a case as full as the first one and is more likely to get an evidence request.
Watch what DHS finalizes after comments close November 13. Until a final rule takes effect, extensions are still reviewed with deference to earlier approvals.
Pick a situation to see what it would mean for you. The three are side-by-side possibilities, in no particular order.
Assumption: The proposal is open for comment; there is no final rule.
These scenarios are our analysis and get updated as new documents come out.
The proposal was published October 14; public comments close November 13.
Comments close November 13; then whether DHS issues a final rule.
Anyone can comment before the deadline, and the agency must read and respond. Current rules still apply after this step.
The proposal was posted for public inspection in the Federal Register, proposing to delete 8 CFR 214.1(c)(5).
The proposal was published (91 FR 65119); comments close November 13.