The Department of Homeland Security has proposed eliminating a requirement that USCIS generally defer to prior eligibility determinations when reviewing extension petitions involving the same employer, worker and underlying facts. Western Growers intends to submit comments addressing the potential costs, delays and uncertainty for agricultural employers. 

The proposal would remove 8 CFR § 214.1(c)(5), which generally requires deference unless there is a material error, a material change in circumstances or eligibility requirements, or new adverse material information. Although adopted through the 2024 H-1B modernization rule, the provision also applies to H-2A and H-2B petitions. 

For H-2A employers, the change would allow USCIS to revisit previously approved eligibility determinations even when the underlying circumstances remain unchanged. Employers seeking to retain existing workers could face additional requests for evidence (RFEs), longer processing times and less predictable decisions during critical planting and harvest periods. 

DHS acknowledges that removing deference could increase RFEs and processing times. Yet it estimates an average additional cost of just $22.17 per RFE, assuming a response takes only 10 minutes to prepare. That assumption warrants scrutiny, particularly when employers must gather records and coordinate with counsel. The analysis also relies primarily on H-1B data, leaving questions about the proposal’s impact on seasonal agricultural operations. 

This is a proposed rule. The existing deference regulation remains in effect for now. Comments are due 30 days after publication, with a November 13, 2026 deadline based on an October 14 publication. 

For questions about the H-2A program, contact Western Growers H-2A Services at [email protected].