USCIS Deference Rule 2026: O-1 Extensions May Re-Prove Criteria

Your client got an O-1A approval in 2023. Same employer, same role, the same research program. Under current rules, the extension mostly rides on that first finding. Under the proposed rule, the officer reading the extension would owe the 2023 approval nothing.

On paper the change is tiny: the regulatory text strikes paragraph (c)(5) and marks it "[Reserved]." What it does to an extension practice is larger.

The Proposal Deletes One Paragraph of 8 CFR 214.1

The document is FR Doc. 2026-20941, published at 91 FR 65119 under RIN 1615-AD26, titled "Removing Deference to Prior USCIS Determinations of Eligibility." The Federal Register entry lists the docket as DHS Docket No. USCIS-2026-0529. It was signed by DHS Secretary Markwayne Mullin.

Here is the text it would remove. 8 CFR 214.1(c)(5) currently reads:

"When adjudicating a request filed on Form I-129 involving the same parties and the same underlying facts, USCIS gives deference to its prior determination of the petitioner's, applicant's, or beneficiary's eligibility. However, USCIS need not give deference to a prior approval if: there was a material error involved with a prior approval; there has been a material change in circumstances or eligibility requirements; or there is new, material information that adversely impacts the petitioner's, applicant's, or beneficiary's eligibility."

DHS gives three reasons for deleting it. First, burden of proof: the agency says deference "effectively shift[s] the burden from the petitioner to the USCIS officer to justify departing from a prior approval," which it reads as in tension with INA section 291 (8 U.S.C. 1361) and with Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), which holds that "the burden of proving eligibility for the benefit sought remains entirely with the applicant." Second, officer fact-finding: DHS says some officers "may simply grant the benefit absent glaring errors or changes." Third, program integrity, backed by site-visit data on H-1B and L-1A extensions.

One sentence in the preamble deserves a highlighter. The proposal "would not prohibit USCIS officers from considering a prior approval where relevant. Rather, it would remove the requirement that officers begin from a position of deference to the prior approval." So the prior approval stays in the file. It just stops being the default.

Deference Has Been On, Off and On Again Since 2004

Practitioners who have been filing extensions for a decade have seen this policy on and off already. The NPRM's own history section lays out the sequence:

1. April 23, 2004. USCIS memo HQPRD 72/11.3 tells officers to defer to prior approvals in extensions involving the same parties and facts.
2. October 23, 2017. Memo PM-602-0151 rescinds the 2004 guidance, citing concern that it improperly shifted the burden to USCIS and limited officers' fact-finding.
3. April 27, 2021. Policy Alert PA-2021-05 "generally restores the 2004 deference policy, with updates," effective immediately, in Volume 2 of the Policy Manual.
4. December 18, 2024. The H-1B Modernization final rule (89 FR 103054) codifies deference at 8 CFR 214.1(c)(5), effective January 17, 2025.
5. October 14, 2026. The current NPRM proposes to remove it.

What the 2021 guidance added still governs today. The USCIS Policy Manual, Volume 2, Part A, Chapter 4 says an officer who declines to defer "must acknowledge the previous approval(s) in the denial, Request for Evidence (RFE), or Notice of Intent to Deny (NOID)," must "articulate the reason for not deferring," must give the petitioner a chance to respond, and "must obtain supervisory approval before deviating from a prior approval." Those procedural protections are the real value of deference to a petitioner. They make an RFE on an unchanged extension expensive for the officer.

The 2017 to 2021 period is the best preview of life without them. Attorneys who filed H-1B and L-1 extensions then remember extensions being reviewed much like initial petitions, and DHS's own numbers (below) show the RFE rate on extensions rose in that window.

What DHS's Own Numbers Say About RFEs and Denials

The regulatory impact analysis is worth reading closely because it is the agency's best case, and it is narrower than the headlines suggest.

DHS compared petitions affected by deference (I-129 Part 2, Question 2, boxes "b" or "c," which include continuation of previously approved employment with the same employer) against unaffected petitions. Its Table 3 reports:

• Affected petitions had an 18.9% RFE rate while deference applied (October 1, 2013 to October 11, 2017) and 23.4% after rescission (October 12, 2017 to April 27, 2021).
• The comparison group moved from 31.4% to 33.0%.
• The difference-in-difference is 2.9 percentage points, which DHS applies to its 208,429-petition baseline to get about 6,044 additional RFEs a year.

Then the line most client conversations should start with. DHS "applied the same DID approach to denial rates and found no corresponding change," and footnote 13 adds that "historical denial rates did not statistically differ during periods when the deference policy was in effect compared to when it was not in effect." DHS's own explanation is that petitioners "may have been able to overcome issues raised in an RFE or NOID by submitting additional evidence."

Read plainly: on the agency's historical data, losing deference meant more RFEs, not more denials. Whether that holds in 2027 under a different adjudication climate is a separate question the data cannot answer.

That last row is where many attorneys will push back. DHS values each additional RFE at a time burden of 0.167 hours, roughly ten minutes, for a total of $133,987 a year across all petitioners. Anyone who has assembled an O-1 RFE response with new expert letters knows the real figure is measured in hours or days. A comment that documents actual RFE response time from your own docket speaks directly to the agency's cost analysis.

The integrity data is narrower still. The fraud and noncompliance percentages DHS cites (22.39% for H-1B extension site visits FY 2022 to FY 2025, against 16.77% for FY 2018 to FY 2020; 24.46% against 18.37% for L-1A) come from site visits "conducted exclusively on H-1B and L-1A extension petitions." The NPRM presents no comparable O-1, TN or E data, and DHS itself concedes "other factors besides or in addition to deference may have led to" the difference.

Every I-129 Classification Is In Scope

The NPRM says the change "would apply to all benefit requests filed using Form I-129." Footnote 5 lists the classifications that use the I-129 for extensions of stay: E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1 and TN. Footnote 1 notes that for E and TN the filer is called the "applicant," and the rule treats them the same way.

Deference only ever applied to a slice of those filings. A change of employer, new concurrent employment or a first-time petition was never entitled to it, because the parties or the facts differ. DHS's population estimate reflects that: about 30% of all I-129s from FY 2014 through FY 2025 were deference-eligible, 2,168,394 out of 7,206,852.

Classification	Typical deference scenario today	What changes if finalized
O-1A / O-1B	Same petitioner, same activity, extension in 1-year increments	Each extension can be reviewed against the criteria and the totality test again
H-1B	Same employer, same position, 3-year extension	Specialty occupation and employer-employee facts can be re-examined
L-1A / L-1B	Same petitioner, same qualifying relationship and role	Managerial capacity or specialized knowledge can be re-argued; L-1A is where DHS cites fraud
TN	Same employer, same USMCA profession	Profession fit and credentials can be re-examined on each I-129 extension
E-1 / E-2 / E-3	Same employer, same treaty or specialty role	Treaty trade, investment or specialty facts open to fresh review on I-129 extensions

For H-1B and L-1, this mostly brings back the 2017 to 2021 experience. For O-1, the effect is sharper, and the reason is in the regulation itself.

Why O-1 Extensions Feel This Most

An initial O-1 petition can be approved for up to three years under 8 CFR 214.2(o)(6)(iii)(A). After that, 8 CFR 214.2(o)(12)(ii) allows extensions "in increments of up to 1 year" for the beneficiary "to continue or complete the same event or activity," and (o)(12)(i) requires "a statement explaining the reasons for the extension."

So a long-tenured O-1A researcher or founder files an I-129 every year after year three. Today, if nothing material has changed, deference does much of the work on each of those filings. Remove it, and every annual extension becomes a potential full adjudication.

Full adjudication of an O-1A means two things. The criteria at 8 CFR 214.2(o)(3)(iii): a major internationally recognized award, or at least three of the eight evidentiary categories (awards, membership, published material, judging, original contributions, scholarly articles, critical role, high salary). And the totality review. The USCIS Policy Manual's O-1 chapter says that meeting three criteria "does not necessarily establish that the beneficiary is eligible," and that the officer "must then consider all the evidence in the record in its totality." That second step works much like the EB-1A final merits determination, and it is where a stale record loses.

A stale O-1 record fails in predictable ways.

The statute requires "sustained" acclaim. Evidence that was fresh at the 2023 filing is now three years old. An officer looking fresh may ask what the beneficiary has done since, and the answer has to be in the exhibits, not the cover letter.

Criteria definitions shift under you. The 2023 approval may have counted a membership or a press piece that a current officer reads differently. Deference today tolerates that; deference gone does not.

Facts drift. Salary changes, title changes, a lab moves to a new institute, a startup raises or loses a round. Under current rules a material change already defeats deference. Without the rule, even small drift invites scrutiny, and the extension statement under (o)(12)(i) may be read against the record more closely than before.

Fresh review is not unlimited review, though. In Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), the Ninth Circuit held that "neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5," citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). That holding addressed the EB-1A regulation. The same reasoning is worth raising in an O-1 extension RFE that asks for evidence 8 CFR 214.2(o)(3) does not require.

The EB-1A Connection Is Indirect but Real

The deference regulation has never covered immigrant petitions. It applies to Form I-129, and an EB-1A is a Form I-140. An approved O-1 does not bind the EB-1A officer, and PA-2021-05 separately notes USCIS "considers, but does not defer to" eligibility determinations by other agencies.

The overlap is in the clients. Many EB-1A petitioners hold O-1 status while the I-140 is pending, or while they wait on a priority date after approval. Each O-1 extension in that window would face a full review if the rule is finalized. Two risks follow.

One: inconsistent records. If the O-1 extension describes the beneficiary's role, salary or contributions differently from the I-140, an officer now reviewing the O-1 fresh has every reason to compare. Keep one source of truth for dates, titles, citation counts and compensation.

Two: an O-1 RFE becomes a preview of the EB-1A fight. The O-1 criteria track the EB-1A criteria closely, and an extension RFE that challenges original contributions under the O-1A standard is a warning about how the same evidence may read in the I-140.

The deference NPRM is also separate from the immigrant-side rulemaking we covered in the EB-1A proposed rule (RIN 1615-AC85), and from the adjustment-of-status discretion memo discussed in our PM-602-0199 analysis for EB-1A and O-1 applicants. Different documents, different dockets, same direction of travel: less weight on what USCIS decided before, more on what the current record proves.

Build Every Extension as a Fresh Petition

The safest assumption is that a final rule will look like the proposal. Practices can start adjusting now at little cost, because a well-built extension also does fine under today's deference standard.

Treat the prior approval as an exhibit, not an argument. Include the I-797 and point to it, since the NPRM says officers may still consider it. But the brief should re-establish each criterion on current evidence, as if the officer had never seen the earlier petition.

Refresh the evidence on a schedule. For annual O-1 extensions, set a recurring 120-day pre-filing review:

• new awards, judging invitations, publications and press since the last filing
• updated citation counts with the retrieval date stated
• current compensation evidence against a stated benchmark, reviewed against the O-1A high salary criterion
• a fresh letter from the petitioner on the beneficiary's role, dated within the filing window
• for agent or itinerary-based O-1s, an updated itinerary and contracts

Document maintenance of status thoroughly. 8 CFR 214.1(c)(6) already requires evidence such as "paystubs, W-2 forms, quarterly wage reports, tax returns, contracts, and work orders." With deference gone, gaps there become an easy RFE.

Disclose changes up front. DHS's integrity argument leans on petitioners who "may be less forthcoming about changes." The right response is the opposite: explain material changes in the extension statement before the officer finds them.

Budget the time. DHS reports petitions with an RFE took 64 more calendar days on average in FY 2022 to FY 2025. File as early as the regulations permit. For timely filed extensions, the NPRM notes the beneficiary "may be eligible to continue to work" while the petition is pending under 8 CFR 274a.12(b)(20); confirm that applies to the classification before relying on it.

Timing Before and After a Final Rule

Several dates are fixed. Several are not.

Known: the NPRM published October 14, 2026, and the comment period closes November 13, 2026. Until a final rule takes effect, 8 CFR 214.1(c)(5) and the Policy Manual guidance apply, and the NPRM's footnote 11 says USCIS "would make corresponding changes to the current policy guidance on deference" only "if this proposed rule becomes final."

Unknown: when DHS will publish a final rule, what its effective date will be, and whether it will say anything about petitions pending on that date. The proposed rule text does not address pending filings. It is reasonable to expect a final rule to apply to adjudications after its effective date, but nothing in the NPRM confirms that, and attorneys should not promise clients a cutoff.

What that means in practice for the next few months, sorted by client:

• Extension due within the normal filing window now. File it complete and early. It will be decided under the current deference standard if adjudicated before any final rule takes effect.
• Extension due in 2027. Start the evidence refresh now and assume no deference. If the rule stalls, you have a stronger filing anyway.
• O-1 holder with a pending or planned EB-1A. Align the two records before the next O-1 extension goes in.
• Previously approved on thin evidence. This client is the most exposed. Discuss whether to strengthen the record before the next extension or to plan for an RFE.

Nobody should file a weak extension early just to beat a rule that is not final. Without deference, a thin record is what draws the RFE, and with deference the thin record was always the vulnerable part anyway.

How to Comment on Docket USCIS-2026-0529

DHS asks for comments that "reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority." Immigration practitioners have exactly that data. Some useful angles drawn from the preamble itself:

1. The 10-minute RFE assumption. Document real hours spent per extension RFE, by classification, and the client cost.
2. Reliance interests. DHS calls them "limited." O-1 beneficiaries on annual extensions and employers planning multi-year projects can describe concrete reliance.
3. Classification-specific evidence. The integrity data covers H-1B and L-1A site visits only. Comment on whether a blanket removal fits O-1, TN, E or P filings.
4. Narrower alternatives. DHS considered only the discretionary-deference version. Propose others, such as keeping deference for extensions with no change in employer, role or compensation, or keeping the supervisory-review and acknowledgment requirements from the Policy Manual.
5. The denial data. DHS found no change in denial rates. Ask what an extra 6,000 RFEs a year buys if outcomes do not change.

Mechanics, per the NPRM: submit through regulations.gov under Docket USCIS-2026-0529, include the agency name (U.S. Citizenship and Immigration Services) and the docket number, and file before midnight Eastern time on November 13, 2026. Emails and letters to DHS officials "will not be considered," USCIS is not accepting mailed comments, and every submission is posted publicly "without change." Remove client names, receipt numbers and anything else identifying before you upload a case example.

For the rest of this week's policy movement, see the immigration news digest for the week of October 19, 2026, and the immigration policy hub for earlier rule and memo coverage.

What to Do This Week

• Pull every O-1, H-1B, L-1, TN and E extension due in the next 12 months into one list, sorted by filing window.
• Flag cases approved on thin or comparable evidence for an early evidence refresh.
• Update your extension templates so the brief re-proves eligibility instead of citing the prior approval.
• Send affected clients a short note: proposed, not final, and what you need from them.
• Decide by early November whether your firm will file a comment, and gather the RFE time data now.

If your extension templates still lean on "no material change," that is the part to rewrite first. Immigration Copilot reads the client's current case file, places each verified fact on the O-1 or EB-1A criterion it supports and shows weak or empty criteria before anyone drafts, which is exactly the check an extension needs once deference is gone. The draft carries an exhibit cite on every sentence. Book a demo and bring an upcoming extension.