USCIS Update: November Visa Bulletin Moves Forward, O-1 Extensions Face a Proposed Rule Change, and EB-1A’s “Final Merits” Test Splits a Court

Oct 26

Bi-weekly USCIS news for EB-1A, O-1, NIW, and adjustment-of-status applicants — October 26, 2026.

October brought a new Visa Bulletin, a proposal that could make O-1 extensions harder, and court developments pulling in opposite directions for EB-1A and adjustment-of-status cases. Here is what changed, and what it means for you.

1. November 2026 Visa Bulletin: forward movement, filing chart unchanged

The State Department released the November 2026 Visa Bulletin on October 22. On the Final Action Dates chart — which controls when a green card can actually be approved — EB-2 for most countries advanced three months, to April 1, 2025, and EB-1 for China advanced one month, to August 1, 2023. EB-1 for India held at February 1, 2023, and EB-2 for India held at November 1, 2013. No employment-based category retrogressed.

USCIS will again use the Dates for Filing chart for employment-based adjustment applications in November, and those dates did not move. If you could file Form I-485 in October, you still can; if you could not, November changes nothing. Filing can open the door to work and travel authorization, but approval still waits for a current Final Action Date.

Why it matters: For EB-1A and NIW applicants, November is a holding month — no backward movement, and early I-485 filing continues for those within the filing chart.

2. Proposed rule: USCIS may stop deferring to prior approvals for O-1 extensions

On October 14, DHS published a proposed rule that would delete 8 C.F.R. § 214.1©(5), the regulation directing USCIS officers to generally defer to a prior approval when deciding an extension involving the same employer, employee, and facts. It covers Form I-129 extensions, including O-1, H-1B, and L-1. It is only a proposal: the current rule remains in effect, and comments are due November 13, 2026 (Docket No. USCIS-2026-0529).

DHS estimates roughly 6,044 additional Requests for Evidence per year, with RFE cases taking about 64 days longer. When deference was withdrawn in 2017, H-1B denial and RFE rates rose sharply before falling after it was restored.

Why it matters: Do not assume an O-1 extension will be a rubber stamp. Build it as a first filing, with updated evidence of ongoing ability and current employment terms.

3. EB-1A’s “final merits” test: two Nebraska judges disagree

EB-1A adjudication has two steps: first, meeting at least three of the ten regulatory criteria (or holding a qualifying major award); second, the “final merits determination,” weighing the record as a whole for sustained acclaim. That second step appears nowhere in the statute or regulation, and two judges in the same Nebraska district have reached opposite conclusions about it.

In Mukherji v. Miller (January 28, 2026), one judge vacated a second-step denial and ordered approval. In Agarwal v. Miller (September), another declined to follow Mukherji and dismissed a challenge to the framework. USCIS has not rescinded it.

Why it matters: Until a higher court resolves the split, plan as if the test applies. Three criteria are the floor — your petition needs a coherent, whole-record story of acclaim.

4. Adjustment-of-status policies challenged — but still in effect

On October 5, a coalition sued in Massachusetts over two 2026 policies: a May 21 memo treating adjustment as discretionary, and an August policy allowing denial of incomplete filings without an RFE or Notice of Intent to Deny first. No court has blocked either, so both remain in effect.

Why it matters: File complete the first time, because you may not get a second chance. Premium processing remains available (15 business days for EB-1A, 45 for EB-2 NIW), but speed is no substitute for a complete record.

Practical takeaways

Check both Visa Bulletin charts. Filing eligibility and approval eligibility are different dates, and November’s good news is mostly on the approval side.
If an O-1 extension is ahead, start early — and prepare it as a fresh case.
For EB-1A, build for step two. Independent letters and documented impact matter as much as checking three boxes.
For adjustment of status, completeness is protection. A pending I-485 stays pending through bulletin movement, but a denial for missing evidence costs far more than getting the filing right.

The through-line this month is preparation: the rules rewarding a complete filing are getting stricter, while the courts have not yet simplified them. If you are weighing EB-1A, O-1, or an NIW, or wondering whether November’s bulletin opens a filing window for you, now is a good time for a strategy review.

This post is general information, not legal advice for a specific case. Priority dates and processing times change monthly; confirm the current Visa Bulletin and USCIS processing times before filing.

Sources

Taylor Kaminski