On October 14, DHS published a proposed rule that would delete 8 CFR 214.1(c)(5), the regulation directing USCIS to generally defer to a prior approval when the same employer files an extension on the same facts (91 FR 65119).

What deference does today:
It is not automatic approval. The petitioner still carries the burden of proof, and officers can depart for material error, a material change, or new adverse information. But an officer who departs must acknowledge the prior approval and explain why. Deference has gone back and forth: introduced by memo in 2004, rescinded in 2017, restored in 2021, and written into regulation by the H-1B modernization rule effective January 17, 2025.

What would change:
Officers could still consider a prior approval but would no longer have to start from it. The proposal covers extensions filed on Form I-129, including H-1B, L-1, O-1, P, E, TN, and R-1. Petitions for a new employer were never covered by deference, so they are not affected.

DHS's own numbers:
DHS cites site-visit data comparing FY2022 to 2025 with FY2018 to 2020: noncompliance rose from 16.77% to 22.39% for H-1B extensions and from 18.37% to 24.46% for L-1A extensions. DHS acknowledges other factors may contribute. It estimates about 6,044 more RFEs a year, and it finds no corresponding change in denial rates.

That last point is worth sitting with. DHS's own analysis predicts more RFEs but no change in denial rates: more cost and delay, with no measurable effect on outcomes.

What employers can do now:

• Nothing changes until a final rule. Extensions filed now are still decided under the current regulation.

• Comment by November 13 at regulations.gov (docket USCIS-2026-0529). Specific data on RFE costs and delays carries more weight than general objections.

• For extensions likely to be filed after a final rule, build the record as if it were a new petition. For O-1s, that means current evidence of sustained acclaim, not a cover letter pointing to the last approval.

• Build RFE time into timelines, especially where an employee is working under the 240-day extension of work authorization.

***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.***