On October 14, DHS published a proposed rule that would delete 8 CFR 214.1(c)(5), the regulation telling USCIS officers to defer to a prior I-129 approval when the parties and underlying facts haven't changed. It reaches O-1, H-1B, L-1, and the other I-129 categories.

Three misconceptions may arise from this news:

Myth: "We've seen this before, so it won't matter much."
We have seen it. Deference was rescinded in 2017, restored in 2021, and codified in 2024. Using data from the rescission years, DHS projects roughly 6,000 additional RFEs per year if the provision is removed. DHS also estimates that answering each one takes 10 minutes and costs petitioners $22.17. If you've ever responded to an O-1 RFE, that figure deserves a comment.

Myth: "This means my extension will be denied."
Not necessarily. Officers could still consider a prior approval where relevant. What changes is the starting point. Today, officers begin from deference. Under the proposal, every extension is a fresh look at eligibility.

Myth: "This is already in effect."
It isn't. This is a proposed rule. The current deference regulation stays in place unless and until DHS finalizes a change, and the proposal would not reopen or invalidate approvals already granted.

Why O-1 extensions are exposed:
O-1 extensions are often filed lean. The regulations allow a petitioner to request an extension with a statement explaining the reasons, with supporting documents required only if USCIS asks [8 CFR 214.2(o)(11), (o)(12)(i)]. Deference is a big reason lean filings have worked. Without it, an officer is free to re-examine whether the beneficiary still meets the extraordinary ability standard.

What O-1 petitioners should do now:
1. Prepare extensions as if they were initial petitions, with current evidence under at least three criteria.
2. Document sustained acclaim since the last approval: new publications, citations, judging, press, awards, and compensation data.
3. Update the petitioner letter, job description, and any itinerary so they match today's facts.
4. Start planning six months before the I-94 expires, not six weeks.

Comments close November 13, 2026 (91 FR 65119; Docket No. USCIS-2026-0529).
If deference has spared your organization or your team unnecessary RFEs, now is the time to say so on the record.

***Disclaimer: This post is for general informational purposes and does not constitute legal advice. Every case is fact specific. Please contact our office to discuss how this decision may affect your individual situation.***