USCIS Proposes Ending Deference to Prior Approvals: What It Means for O-1, E-2, H-1B and L-1 Extensions

On October 14, 2026, DHS published a proposed rule in the Federal Register titled "Removing Deference to Prior USCIS Determinations of Eligibility." If finalized, a USCIS officer adjudicating an extension on Form I-129 — including O-1, E-2, H-1B and L-1 — would no longer be required to rely on a prior approval based on the same facts. Each extension would be reviewed as a new case. Comments are accepted through November 13, 2026.

In short:

• The proposal removes 8 CFR 214.1(c)(5), which requires USCIS to give weight to a prior approval in extensions involving the same parties and facts.
• It applies only to extensions on Form I-129: E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P, Q-1, R-1, TN.
• DHS estimates that about 208,429 petitions a year (about 30% of all I-129s) are eligible for deference, and that ending it would add about 6,044 RFEs a year.
• Comments are due by November 13, 2026, through regulations.gov only (docket USCIS-2026-0529).
• As of October 27, 2026, this is a proposal: the current rule applies until a final rule is issued.

What deference is and where it came from

Deference is the principle under which USCIS, when adjudicating an extension with the same employer (or agent), the same worker and the same facts, relies on its earlier decision. An officer may depart from it only if the prior approval involved a material error, circumstances have materially changed, or new material information adversely affects eligibility.

Source: text of the proposal in the Federal Register, 10/14/2026.

What the proposal changes

DHS argues that the statute places the burden of proof on the petitioner and that ending deference would "strengthen adjudicatory review" and protect US workers. The eligibility criteria for each classification do not change. An officer could still consider a prior approval, but it would carry no binding weight.

DHS estimates (FY 2022–FY 2025 averages):

• about 208,429 I-129 petitions a year are eligible for deference — about 30% of all I-129s;
• ending it would add about 6,044 RFEs a year, a 2.9 percentage point increase in the RFE rate.

The proposal contains no transition provision: the text does not say how petitions filed before the rule takes effect would be handled (as noted by NPZ&B Law Group).

Who is affected

• O-1A and O-1B. An extension filed on I-129 through an agent or employer may require proving the criteria again, not just continued work in the same field. More on the criteria on the O-1 page and in our article on O-1 requirements in 2026.
• E-2 inside the US. Extending E-2 status on I-129 is also on the list. Renewing an E-2 visa at a consulate abroad is a separate process that the proposal does not address. More on the E-2 page.
• H-1B and L-1. Same-employer extensions make up most of these petitions. For other H-1B changes, see our article on the $100,000 fee.
• Not affected under the proposal's text: Form I-140 (EB-1A, EB-2 NIW) and Form I-539 for family members.

DHS notes that with a timely filed extension a worker can generally continue working for up to 240 days after the authorized stay ends (8 CFR 274a.12(b)(20)). If RFEs become more frequent and processing longer, that margin may become tight.

Example (hypothetical): a researcher received a three-year O-1A through an agent. In 2027, the agent files an I-129 extension with the same itinerary. If the rule is finalized, the officer could request fresh evidence on the criteria — publications, citations, expert letters — as in the initial filing.

What to do now

1. Do not delay your extension. Status and work authorization depend on timely filing. File early and, where possible, use premium processing.
2. Prepare the extension as a new case. Update your evidence on the criteria instead of relying only on a copy of the prior I-797 approval.
3. Check the facts. Position, duties, worksite, pay and the itinerary (for O-1) should match the prior filing, or any changes should be explained.
4. Plan time for an RFE. See our guide on how to respond to a USCIS RFE.
5. Think about a long-term path. O-1 holders may want to evaluate EB-1A or EB-2 NIW in parallel.
6. To influence the outcome, submit a comment on regulations.gov by November 13, 2026.

What comes next

After November 13, DHS must review the comments and publish a final rule. No timeline has been set. Until then, 8 CFR 214.1(c)(5) remains in effect. We will update this article when a final text is published.

How M&M can help

• O-1 and E-2 extension preparation. We assemble an updated evidence package, expert letters and certified translations.
• Work with partner attorneys. Legal assessment and signing of the petition are handled by a licensed immigration attorney.
• Get in touch. Contact us — our office is at 1944 Coney Island Ave, Brooklyn.

Sources

• Federal Register: Removing Deference to Prior USCIS Determinations of Eligibility (10/14/2026)
• GovInfo: Federal Register Vol. 91, No. 197, document 2026-20941 (PDF)
• Duane Morris: DHS Proposes to End Deference to Prior Approvals for H-1B, L-1 and Other Form I-129 Extensions (10/15/2026)
• NPZ&B Law Group: USCIS Deference to Prior Approvals May End (10/21/2026)
• Cyrus D. Mehta & Partners: Immigration Update (10/19/2026)

This article is for informational purposes only and is not legal advice. M&M Document Preparation is not a law firm. Information is current as of October 27, 2026.