EB-1A and EB-2 NIW: new case standards for 2025-2026

The new standards for EB-1A and EB-2 NIW case review are not a separate document, but a combination of three processes: approval rates have dropped sharply, a federal court declared a key review procedure unlawful, and automated tools have been introduced in petition review. Let's go through what is known and what this means.

Exactly how much worse is it: Q3 FY2025 figures

For the third quarter of fiscal year 2025 (April-June 2025), here is what the numbers look like by category:

EB-1A dropped by 8.4 percentage points in a single quarter, which is a three-year low.

There are two different reasons for this decline, and it is helpful to distinguish between them. The first is the composition of the applicant pool itself. In 2022-2023, EB-2 NIW became a popular category: there was a sharp increase in filings, the average case quality dropped, and a backlog built up at the agency. USCIS reached these petitions later, already applying a stricter review standard, and cases prepared during the period of easy approvals no longer passed. The more such cases are screened out, the lower the overall approval rate looks. The second reason is the changed review standard, which will be discussed below.

Don't get discouraged. Since last summer, there have been a lot more RFEs, NOIDs, and denials. Statistics were posted in the main chat. Officers just received new instructions. You need to address the issues raised and strengthen your final merits.

Why EB-1A and NIW dropped but O-1 held steady

The difference lies in the amount of officer discretion in each category. O-1 is closer to a checklist: the criteria are fixed, evidence is in order, there is a petitioner and an employment schedule. EB-1A and NIW have a second step, where the officer evaluates all the evidence together to decide if the applicant's overall level is sufficient.

"At this step, officers consider any potentially relevant evidence in the record. The officers consider all evidence in the totality. Some evidence may weigh more favorably on its own, while other evidence is more persuasive when viewed with other evidence."

This step is what has become stricter. The category that does not have it remained at the same level.

The court declared final merits unlawful. What now

The most significant event of the period is barely discussed in Russian-language sources. In Mukherji v. Miller (Nebraska District Court, case 4:24-cv-03170), a self-petitioner for EB-1A was denied using the two-step final merits process. In January 2026, Judge Joseph Bataillon overturned the denial and ruled the final merits process itself to be unlawful.

The government appealed to the Eighth Circuit Court of Appeals, case no. 26-1578. The appeal was filed on March 30, 2026. The deadline for the government's main brief was originally set for May 11, 2026, and was extended by unopposed motion to June 10, 2026.

The dispute is part of a broader context. After the Supreme Court's decision in the Loper Bright case, agency interpretations no longer carry the same automatic weight, and procedures made up by the agency on top of the regulatory text have become more vulnerable.

The appeal: where the case stands as of 15 May 2026

The three questions the government took on appeal, paraphrased: whether the court erred in finding the "two-step approach", endorsed in Kazarian (Ninth Circuit, 2010) and Amin v. Mayorkas (Fifth Circuit, 2022), arbitrary and contrary to law; whether the court erred in holding that the approach required notice-and-comment rulemaking under 5 U.S.C. § 553; and whether the court erred in reaching the merits and ordering USCIS to approve the petition instead of remanding.

What matters for anyone answering an RFE now: the fifth ground of the decision - that the statute contains no requirement to "stay at the top continuously" - is not challenged on appeal, so that argument survives whatever the outcome. Loper Bright is absent from the government's position.

If the Eighth Circuit affirms, a split with the Fifth Circuit (Amin) opens and the road leads to the Supreme Court; if it reverses, the two-step procedure gains appellate backing in a third circuit and citations to Mukherji in responses weaken. As of mid-May 2026 there was no public confirmation that USCIS had complied and approved the petition, and no motion to stay in the docket.

What officers now write about national importance

The main shift in NIW is that they assess not the field, but your specific endeavor.

"In determining national importance, the relevant question is not the importance of the field, industry, or profession in which the individual will work; instead USCIS must focus on the 'specific endeavor that the foreign national proposes to undertake.'"

"Merely working in an important field is insufficient to establish the national importance of the proposed endeavor."

A popular myth has also been debunked: the STEM field alone does not provide an advantage.

"Counsel references STEM as it relates to Accountant specialist. However, while the petitioner's specific proposed endeavor may fall within a STEM field, it does not automatically show eligibility for a national interest waiver."

The practical takeaway: describing your activity as "working in an important industry" is no longer effective. You need to describe your specific endeavor and show its impact beyond your employer and clients, ideally with figures.

How to prove national importance so the officer sees specifics

The next question after "what is the endeavor" is "how is it supported." The agency's position is clear: benefits to a single employer are insufficient, even if the employer is large.

"Benefits to a specific employer alone, even an employer with a national footprint, are not sufficiently relevant."

Thus, the types of evidence that show specifics include:

• Financial and staffing projections: expected project revenue, number of jobs created
• A business plan backed up by documents rather than intentions: signed contracts, funding commitments, market demand data, confirmations of investments or partnerships
• Scale indicators: who already uses your development and what has changed for them

And, conversely, here are things that weaken a petition:

• generic letters written from the same template: this type is recognizable from the first paragraph;
• all diplomas and certificates attached just in case - they add no weight and only dilute the packet;
• achievements without numbers or results: each such mention raises a question for the officer rather than making an argument.

The second prong of the Dhanasar test is about whether you are capable of carrying out your proposed endeavor. The officer examines how your education and work history align with what you plan to do in the US and through which company or other organization you intend to pursue this activity. A gap between your background and your proposed project reads as an application for something in the future, and that is not a strong position.

Why "shortage of specialists" is the weakest argument

The argument about a labor shortage seems strong but actually works against the applicant. The officer's response to this has become standard:

"An occupational shortage does not eliminate the benefits of a process designed to protect U.S. workers and therefore does not tilt the balancing test in the petitioner's favor. The U.S. Department of Labor already addresses shortages of qualified workers through the labor certification process, and through its Schedule A regulations."

The logic is simple: if the problem is a lack of workers, it already has a standard solution - labor certification. That means there is no reason to bypass it in your favor. This also applies to phrasings like "there are few such specialists in the US."

AI in petition review: four patterns

In 2025-2026, automated tools were introduced to petition processing, which led to recognizable glitches. Four patterns are documented:

1. Incorrect evidence classification. The USCIS system's automated classifier assigns a document to the wrong category, and the officer requests something that was already submitted.
2. Document discrepancies. Different spellings of a name in transliteration or different versions of an organization's name lead the system to flag a mismatch where there is none.
3. Hidden text in PDF. Layers, comments, and invisible text embedded in files get parsed and reviewed.
4. Template RFEs. Requests copied from sections of the regulations without consideration for the specific case.

"USCIS has not published any error-rate data, and practitioners report RFEs for documents that were in fact submitted, consistent with classifier mis-tagging."

"disorganized, boilerplate recitations of USCIS Policy Manual provisions... often copied verbatim and presented without analysis... looks official but reads as though no human being meaningfully reviewed the filing."

This leads to a practical requirement for presentation: consistent spelling of names and organization names in all documents, clean PDFs with no hidden layers, clear labeling of exhibits and contents. This is no longer just a matter of neatness - now it determines whether the system recognizes your evidence.

RIN 1615-AC85 Reform: Wait or Apply Now

DHS is working on updating the rules for first and second preference categories, tracked under RIN 1615-AC85. A regulatory agenda card is publicly available, but at the time of writing, the final rule text has not been published.

According to the agenda, the proposed rule is scheduled for publication in January 2026, followed by a public comment period. The new rules could not take effect until after this process, so not before late 2026. Petitions filed before then will be reviewed under the current rules.

Five Key Points in the Agenda

1. Part of the Policy Manual will become binding. The agency proposes elevating some internal guidance to the level of mandatory regulation. The stated goal is to reduce room for officer subjectivity.
2. Clearly defined evidence requirements for each category. This concerns EB-1A, EB-1B (outstanding professors and researchers), EB-2 NIW, and doctors at the national or international level. There is currently no unified list: officers rely on precedents (for NIW, it is Matter of Dhanasar) and internal memoranda. The requirements list is intended to make decisions more consistent, but the actual wording is not yet public.
3. Revising rules written more than thirty years ago. The current employment-based green card rules were created before startups, remote work, and some modern professions existed. This may lead to more flexible requirements for sponsors or, conversely, tighter scrutiny of atypical situations.
4. Preventing abuse. The agency wants to better define what qualifies as a bona fide job offer and get clearer powers to conduct on-site inspections, similar to H-1B. For EB categories, site visits are currently rare.
5. Technical corrections. Fixing typos and inconsistent cross-references in the regulations that cause confusion during petition review.

What to Change in Your Case Right Now

1. Rewrite activity descriptions from industry-wide language to concrete initiatives and their outcomes.
2. Remove arguments about labor shortages and general references to the importance of the field.
3. Add measurable evidence of impact: scale of adoption, who is using it, and what effect it has.
4. Standardize the names of people and organizations and clean up your PDFs.
5. Do not rely on meeting the minimum number of criteria: the second step evaluates overall achievement level.

Yes, I don't see any point in filing EB-2 NIW in my case. It's mostly granted to very strong cases or scientists. It's easier to spend time building a portfolio for EB-1 and apply later.

Who Actually Reviews Your Petition

Your case is not reviewed by a specialist in your field. The officer may have no idea what the conference was that invited you, why your role in a project matters, or why the number of implementations is significant. This leads to a requirement that may sound obvious, but is almost never met: the petition must be clear to someone without your professional background. Terms need to be clarified, the significance of a platform or award explained in a separate document, and the chain of "did it - achieved result - others rely on it" should be laid out explicitly, not left for the reader to figure out.

Everything else builds on this: clear argumentation, evidence for every claim, and a coherent narrative that shows development, not just a list of facts.

More on how the criteria are structured and the second step of evaluation can be found in the article on criteria, and on the consular stage after approval in the article on approval specifics.

Conclusions

1. In the third quarter of FY2025, EB-1A was approved in 66.6% of cases, NIW in 54%, while O-1 remained at 93.8%.
2. The decline specifically affected categories with a discretionary second step of review.
3. In January 2026, a federal court found the final merits procedure unlawful; the case is on appeal in the Eighth Circuit under number 26-1578, but this has not yet affected USCIS practice.
4. NIW evaluates the proposed endeavor itself, not the importance of the field; arguing a shortage of specialists works against the applicant.
5. Automated document processing has made the accuracy of documentation a key factor.
6. National importance must be supported by data and documents: revenue and job forecasts, contracts, funding commitments, demand statistics; template letters and a stack of diplomas work against your case.
7. The RIN 1615-AC85 rulemaking project is expected in January 2026, will not take effect before the end of 2026, and petitions filed before then are reviewed under current rules. Waiting for reform to improve your chances is not advisable.
8. A non-specialist will read your petition, so you must explain why it's important and not leave anything to be inferred.

Frequently Asked Questions

Related Materials

Related materials - What you must prove

• EB-1A, O-1 and NIW criteria: the official USCIS lists
• Features of U.S. Talent Visa Approval: O1/EB1/EB2
• O-1, EB-1 or EB-2 NIW: the differences, which to choose
• O-1, EB-1, and EB-2 NIW Comparison: Key Differences
• EB-1B: requirements and how it differs from EB-1A
• EB-1C: the visa for multinational executives and managers
• Can a Lawyer Get EB-1A?
• Awards for O-1 and EB-1A: what counts, why they are refused
• Membership in associations for O-1 and EB-1A: what counts
• Published material about you: the major-media criterion
• Judging for O-1 and EB-1A: how to meet the criterion
• Original contribution for EB-1A: the hardest criterion
• Scholarly articles for O-1 and EB-1A: authorship criterion
• Leading or critical role: how to prove it for O-1 and EB-1A
• High salary for O-1 and EB-1A: 11 mistakes, data sources
• Visa types in plain words
• Self-assessment against the criteria
• IEEE Senior Member and EB-1A: is it worth it?

All articles in «What you must prove»

From community discussions

• «If you're just a master as of today, the path isn't quick: you need championships (online/offline doesn't matter much, finding them isn't a problem, there are lots), then judging, speaking, conferences, and ideally something of your own authorship and to patent it.»

  Amster · from public community chats

• «Many people get approved without this criterion at all, or with four publications over four months. Don't worry: if you're not a Nobel laureate, everyone's chances are roughly the same. Any case can be shot down at the Final Merits stage - that's a subjective assessment at the second stage. It's curable by refiling. If you don't give up the fight, you'll make it to the States.»

  Egor · from public community chats

• «The O-1 is not an immigrant visa. Its criteria are easier than for EB-1A, and you can pick the embassy and interview date yourself, the AP risk is lower. For EB-1A the criteria require stronger arguments. That's why many people first do the O-1, enter the US, and once the EB-1A is approved they get the green card without trouble with the consulate. By the way, an EB-1A approval at USCIS isn't a 100% approval yet - the consul can send the case back to USCIS for review.»

  Ol · from public community chats

Personal opinions of community members from public discussions, not legal advice.

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