If you work in the United States on a TN, H-1B or L-1, or hold an E-2 based on your investment, you will likely ask for an extension at some point. Until now, if nothing had changed, USCIS generally respected the approval it had already given you. On October 14, 2026, USCIS published a proposal to remove that protection. It is not in effect yet, but it makes sense to start preparing now.
What is “deference,” and what would change?
Deference is a simple rule: when you request an extension with the same employer and the same facts, the officer starts from the assumption that your prior approval was correct. The officer only re-examines everything if there was a material error, a material change in your case, or new information that hurts your eligibility.
The rule has a history. It began with a 2004 memo, was rescinded in 2017, and returned in April 2021 in the USCIS Policy Manual. In December 2024 it was written into the regulations (8 CFR 214.1(c)(5)).
The proposal published on October 14, 2026, would remove that section of the regulations and the policy that goes with it. The text says officers could still consider a prior approval where relevant. What changes is the starting point: officers would no longer begin by treating it as correct. You would have to prove again that you qualify.
Who is affected?
Requests filed with USCIS on Form I-129, the petition for temporary workers. These include extensions of:
- TN (Mexican and Canadian professionals under USMCA).
- H-1B (specialty occupations).
- L-1 (intracompany transferees, including L-1A managers and executives).
- E-1 and E-2 (treaty traders and investors), when the extension is requested from USCIS.
The proposal covers decisions made by USCIS. Renewing a visa at a consulate is a separate process.
What does it mean in practice?
More questions. The government itself estimates about 6,044 additional Requests for Evidence (RFEs) per year. It also reports that cases with an RFE typically take about 64 days longer to decide. If your status expires soon, those days matter.
For E-2 investors, Fernanda Inegol puts it this way in her consultations: the business plan is “the skeleton of your next renewal,” because at renewal time “they are going to review that business plan.” If the projections were inflated, the gap will show. That is why she recommends conservative projections from the start.
Is it in effect yet?
No. It is a proposal. The public can submit comments until November 13, 2026, at regulations.gov, under docket USCIS-2026-0529. After that, the government may publish a final rule, change it, or not publish it at all. In the meantime, the current rule still applies.
What we recommend
- Check today the expiration date of your I-94 and your approval. Plan your extension several months ahead.
- Prepare your extension as if it were the first time. Job description, pay stubs, W-2s, an organizational chart and, for E-2, financial statements showing the business is operating.
- Compare your case with what you filed before. If your job, salary, office or number of employees changed, explain it with documents.
- Employers: keep the worker’s records organized and consistent with the original petition.
- Consider premium processing if your date is close, to get a faster answer.
- If you want to weigh in, comment before November 13, 2026, at regulations.gov.
Need help?
If your TN, H-1B, L-1 or E-2 expires within the next year, or if you are an employer sponsoring workers, schedule a consultation with our San Antonio office. We will review your dates and what to prepare.
This article is general information and is not legal advice for your case. Fernanda Inegol, Barba Inegol Law Firm PLLC.