US closes comments on plan to give less weight to earlier work petition approvals

Check what the proposal covers

This update concerns employers and other petitioners using Form I-129 for a temporary worker whose earlier application USCIS approved. The Department of Homeland Security's October proposal would remove the rule that generally gives weight to USCIS's own prior eligibility decision where the parties and underlying facts are the same. The published public comment deadline was November 13, 2026, before midnight Eastern time.

The comment deadline closed the published window for input. It did not make the proposal effective or set a deadline for employers to file extension petitions. The current online federal regulation still includes the provision. The Federal Register proposal and current code answer different questions. Check the final rule and its effective date if the department later publishes one.

Compare the current petition with the earlier approval

The 2024 modernization rule put the prior-approval provision into the regulations, effective January 17, 2025. Deference means the agency generally accepts its earlier eligibility finding in a comparable case. The final rule's explanation distinguishes that practice from the petitioner's responsibility to establish eligibility. An earlier approval does not replace the evidence for the new filing.

Compare the petitioner, worker, job and the factual basis for the previous approval. The current rule allows USCIS to depart from its earlier decision if it involved a material error, circumstances or eligibility requirements materially changed, or new material information undermines eligibility. For example, an illustrative extension for the same worker in the same job presents a different factual question from a filing that relies on substantially changed duties.

The 2021 USCIS policy alert explains another boundary. USCIS considers prior findings by other federal agencies but does not give those decisions the same deference. A petition file should distinguish a prior USCIS determination from other records such as a visa printed by the State Department. Make it clear which previous decision you are asking USCIS to consider.

Prepare evidence for the current filing

Federal filing rules place the burden on the benefit requestor to establish eligibility at filing and maintain eligibility while the application is decided. Build the packet from the facts and documents supporting the current classification. Keep the earlier approval and petition available for comparison, and explain any differences relevant to the category. Reusing last year's supporting letter without checking it can obscure an important change in the offer.

When Form I-129 also requests an extension or amendment of stay, the current rules require evidence the worker maintained the previous status. The regulation lists examples including payroll records, tax documents, contracts and work orders. Select evidence that covers the period in question and fits the employment arrangement. A brief explanation can help connect records from different parts of that period.

Check the worker's dates and petition fees

Identify the worker's authorized stay before setting the filing schedule. Customs and Border Protection describes the I-94 as the admission record. Check the most recent applicable record, including later USCIS documents if relevant, rather than assuming the printed visa expiry controls. The regulation generally requires timely filing for an extension of stay and allows late filing only under limited discretionary conditions.

Use the federal fee schedule to identify the classification and the petitioner's applicable fee category. It provides different I-129 fees by worker classification and in some cases by petitioner size or nonprofit status. Check the applicable additional charges before payment. Follow the filing instructions for the classification and keep the submission and receipt details with the retained packet.

The government has proposed removing a decision-making provision. The notice does not set a new payment or a new extension deadline. A petitioner with a deadline approaching should work from the form, fee and evidence requirements in effect for the actual filing, then check the Federal Register for any later transition rules before making assumptions about pending cases.