The short answer
On October 14, 2026, the U.S. Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register titled "Removing Deference to Prior USCIS Determinations of Eligibility" (91 FR 65119; Federal Register document 2026-20941; DHS Docket No. USCIS-2026-0529) (Federal Register).
DHS proposes to remove 8 CFR 214.1(c)(5) — the regulation under which U.S. Citizenship and Immigration Services (USCIS) gives deference to a prior approval when it decides a request filed on Form I-129, Petition for a Nonimmigrant Worker, involving the same parties and the same underlying facts. That includes TN workers whose employer files Form I-129 to extend their stay.
This is a proposal only. It is not a final rule, and nothing in it changes how extensions are decided today. Written comments are due on or before November 13, 2026.
What DHS proposed
- The regulatory text: DHS proposes to amend 8 CFR 214.1 by "[r]emoving and reserving paragraph (c)(5)," so that paragraph (c)(5) would read "[Reserved]" (Federal Register, proposed regulatory text).
- The current wording it would remove: 8 CFR 214.1(c)(5) currently provides that, when adjudicating a Form I-129 involving the same parties and the same underlying facts, USCIS gives deference to its prior determination of eligibility unless there was a material error, a material change, or new material information that adversely impacts eligibility. DHS codified that provision in December 2024 (89 FR 103054).
- The stated reasons: In the summary, DHS states the change "would better align DHS regulations with the statute, which places the burden of proving eligibility for all immigration benefits on the petitioner, applicant, or beneficiary; strengthen adjudicatory review; and support agency priorities to improve the integrity of the immigration system and better protect the interests of U.S. workers" (Federal Register summary).
- TN is named in the preamble: A footnote states that for most classifications that use Form I-129 the filer is called the "petitioner," but "for some classifications (for example, the E and TN classifications), the filer is referred to as the ‘applicant’" (Federal Register).
What deference means, in plain terms
Under the current regulation, when an employer asks USCIS to extend a worker's petition or stay and the parties and underlying facts are the same as in an earlier approved filing, the officer deciding the extension starts from that earlier approval and generally follows it. The officer can depart from it in the three situations the regulation lists: a material error in the earlier decision, a material change, or new material information that adversely affects eligibility.
The proposal would remove that instruction from the regulation. The preamble states that officers would instead review the facts and evidence in each request, with the burden of proving eligibility remaining on the petitioner, applicant, or beneficiary.
What is and is not changing now
- Not changing now: 8 CFR 214.1(c)(5) is still in the Code of Federal Regulations. The deference provision still applies to Form I-129 adjudications, including TN extensions filed on Form I-129, while the proposal is pending.
- Not changing now: TN status itself — the profession list, the credential requirements, and the two ways a TN worker can extend (a new application at a port of entry, or an employer-filed Form I-129) — is not amended by this document. See TN renewal.
- What has happened so far: DHS has published a proposal and opened a 30-day comment period. A change would take effect only if DHS publishes a final rule after the comment period; this document does not set an effective date for any change.
How to comment
The Federal Register document states: "Written comments on the notice of proposed rulemaking (NPRM) must be submitted on or before November 13, 2026. The electronic Federal Docket Management System will accept comments before midnight Eastern time at the end of that day."
- Submit comments through the Federal eRulemaking Portal at regulations.gov, identified by DHS Docket No. USCIS-2026-0529 — the document's comment page is regulations.gov: comment on USCIS-2026-0529-0001.
- Include the agency name (U.S. Citizenship and Immigration Services) and DHS Docket No. USCIS-2026-0529 with the comment.
- The document states that comments submitted in another manner, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule, and that DHS and USCIS cannot accept hand-delivered, couriered, or mailed comments at this time.
- Read the full document: Federal Register — Removing Deference to Prior USCIS Determinations of Eligibility (91 FR 65119).
Common questions
Has the deference rule for TN extensions already changed?
No. DHS published a notice of proposed rulemaking on October 14, 2026 (91 FR 65119). It is a proposal only. The current regulation, 8 CFR 214.1(c)(5), remains in effect unless and until DHS publishes a final rule.
What would the proposed rule remove?
It would remove and reserve 8 CFR 214.1(c)(5), which currently provides that USCIS gives deference to a prior determination of eligibility when adjudicating a Form I-129 involving the same parties and the same underlying facts, unless there was a material error, a material change, or new material information that adversely impacts eligibility.
Who would the proposal affect?
Employers and workers whose extension requests are filed on Form I-129, including TN workers extending through an employer-filed Form I-129. The preamble states that for the E and TN classifications, the filer is referred to as the applicant.
How can someone comment on the proposed rule, and by when?
Written comments must be submitted on or before November 13, 2026, through the Federal eRulemaking Portal at regulations.gov, identified by DHS Docket No. USCIS-2026-0529.
Last reviewed: October 20, 2026