If you have been preparing a petition for extraordinary ability or national interest status, you may have noticed something unsettling in recent conversations with attorneys or online communities: approvals are not as straightforward as they used to be. USCIS data over the past several fiscal years shows meaningful shifts in how immigration officers evaluate these categories, and the downstream effects for applicants are real.
Understanding what is driving these changes—and what you can do about them—is essential before you file. This article breaks down the trends affecting both the EB-1A and EB-2 NIW pathways, explains what USCIS is looking for today, and provides practical guidance to strengthen your case.
A Closer Look at the Numbers
Approval rates for employment-based preference categories are not static. They shift with administrations, policy memoranda, adjudicator training, and changes to evidentiary standards. Over the past few fiscal years, both the EB-1A extraordinary ability category and the EB-2 National Interest Waiver have seen increased rates of Requests for Evidence (RFEs) and, in some quarters, lower overall approval rates compared to earlier periods.
For applicants in research, sciences, arts, business, and technology, this is more than an abstract statistic. A single RFE can significantly disrupt your onboarding timeline and delay your overall professional trajectory. A denial can mean restarting the process entirely, reassessing whether the category is the right fit, or exploring alternative pathways.
It is worth noting that these trends do not mean the categories have become impossible—far from it. But they do mean that a petition assembled with outdated assumptions about what USCIS finds convincing is more likely to face scrutiny than it would have been even three years ago.
What Is Behind the Increased Scrutiny for EB-1A Petitions?
The EB-1A category is reserved for individuals who have reached the very top of their field. The standard is intentionally demanding: you must demonstrate a level of expertise that places you among a small percentage of professionals who have risen to the top of their discipline.
USCIS evaluates EB-1A claims using a two-part framework drawn from the Kazarian decision. First, adjudicators assess whether you have met at least three of the ten regulatory criteria. Second—and this is where many cases now run into trouble—they perform a final merits determination, weighing all of the evidence holistically to decide whether it establishes sustained national or international acclaim.
In recent adjudications, officers have applied the final merits step more rigorously. Simply clearing the threshold of three criteria is no longer sufficient if the underlying evidence is thin. Applicants have experienced denials despite meeting the numeric criteria because USCIS concluded that the totality of the record did not demonstrate the sustained, high-level recognition the standard requires. For a deeper look at how this plays out for researchers, see this analysis of what makes the EB-1A a preferred route for scientists.
Common Weaknesses That Draw RFEs
- Citation counts that are high in absolute terms but low relative to field norms
- Judging or peer-review credits that lack evidence of selectivity or the invitation process
- Media coverage from industry outlets rather than general circulation publications
- Awards that are well-regarded within a niche but not independently recognized
- Contribution letters from colleagues rather than independent experts with no prior relationship to the applicant
If you are a scientist or researcher, a detailed walkthrough of how to frame your contributions can be found in this guide on proving scientific contributions for an extraordinary ability petition. Those working in pharma, biotech, or healthcare should also review how visa pathways intersect with industry-specific credentials.
EB-2 NIW: A Category Under Tighter Review
The EB-2 National Interest Waiver allows individuals with an advanced degree or exceptional ability to bypass the PERM labor certification process if their work benefits the national interest. The binding legal framework, established by the USCIS Administrative Appeals Office in Matter of Dhanasar, requires satisfying three strict prongs: the applicant’s proposed endeavor must possess both substantial merit and national importance, the foreign national must be well-positioned to advance the endeavor, and on balance, it must be beneficial to the United States to waive the requirements of a job offer and labor certification.
In recent cycles, USCIS has taken a closer look at how applicants establish the third prong. Simply claiming that your field is important is not enough. Officers want to see concrete reasons why the government’s interest in your specific contributions outweighs the protections the PERM process provides to U.S. workers.
Petitioners who have struggled include those with strong academic records but limited evidence of real-world impact, applicants whose proposed endeavors were described in general terms rather than tied to specific ongoing work, and those who failed to explain why they, specifically, are uniquely positioned to carry out the work.
If you are evaluating whether the NIW is the right fit, comparing it against the standard labor certification path is a useful exercise. You can explore the EB-2 PERM and NIW options available in San Francisco or review EB-2 pathways for applicants based in New York to understand how the process differs depending on your situation. A broader overview of employment-based second preference options is also available on the EB-2 visas overview page.
How Approval Trends Differ Across Fields
Not all petitioners are experiencing the same level of scrutiny. Field and discipline play a meaningful role in how officers approach evidence.
STEM and Research Fields
Researchers with strong publication records remain well-positioned, but citations and impact factor alone are increasingly insufficient. USCIS officers are more frequently asking for expert letters that specifically explain—rather than assume—why the applicant’s research is significant at a national or international level. Letters that read as generic endorsements carry less weight than those that address the field’s specific challenges and explain the petitioner’s role in advancing solutions.
Business, Finance, and Entrepreneurship
Applicants in business-facing disciplines have faced heightened skepticism in recent adjudications. USCIS has questioned whether media coverage, speaking invitations, or advisory roles rise to the level required for extraordinary ability. Those building toward an EB-1A from a foundation of O-1 visa work may find useful context in how an O-1 visa can strengthen an eventual extraordinary ability petition.
Arts and Entertainment
For applicants in creative fields, establishing commercial success and critical recognition simultaneously remains the most effective strategy. Officers tend to look for evidence that your recognition is not limited to a single market or geography, and that the acclaim you have received comes from established critics or industry institutions rather than fan communities or self-generated platforms.
Practical Steps to Improve Your Petition’s Chances
Given these trends, there are concrete things you can do to put your case in the strongest position possible before filing.
- Build your evidence record well before filing. Adjudicators evaluate the record as it exists at the time of filing. Waiting until you are ready to file and then rushing to gather documentation is a recipe for thin evidence.
- Invest in expert letters that explain, not just endorse. Letters from renowned figures in your field carry weight only when they articulate why your contributions matter and how they compare to the work of your peers.
- Contextualize your metrics. A citation count of 500 means something very different in a narrow subfield than in a broad discipline. Include field-specific comparators and norms.
- Document your impact concretely. For NIW petitions, showing that your work has been adopted, cited in policy, or used in practice carries more weight than describing your work’s potential impact in theory.
- Consider filing online to improve processing predictability. USCIS has expanded online filing options, which can offer administrative advantages. Learn more about how online filing works for immigration petitions.
Weighing Your Options: EB-1A, EB-2 NIW, and Investor Pathways
For some applicants, the right response to increased scrutiny in one category is to explore whether a different pathway fits better. The EB-1A is not the only route to permanent residence for high-achieving individuals. The EB-2 NIW serves a distinct population, and for those whose profile fits, it can be a more appropriate vehicle. You can explore extraordinary ability permanent residence options in San Francisco or extraordinary ability applications for New York-based professionals to see how those pathways are structured for specific markets.
For entrepreneurs and investors who are weighing all available options, treaty investor and business immigration pathways may offer a parallel route worth considering depending on your business activities and long-term goals. A side-by-side analysis of the strategic differences between the EB-1A and EB-5 investor visa is also available for those exploring the full spectrum of employment-based permanent residence options.
The Importance of Working with an Experienced Attorney
Approval rate data tells part of the story. What it cannot capture is the quality of preparation behind the petitions that succeed. In a climate where USCIS is scrutinizing cases more carefully, the difference between an approval and an RFE often comes down to how evidence is framed, which criteria are emphasized, and how supporting letters are structured.
An experienced immigration attorney does not just compile documents—they build a narrative that maps your accomplishments onto the regulatory language in a way that anticipates how an adjudicator will read the file. That kind of petition-level strategy has become more important, not less, as standards have tightened.
For those in the New York and San Francisco markets, exploring the EB-2 PERM process in New York or the EB-2 PERM process in San Francisco may also clarify whether a labor certification route alongside or instead of a NIW makes more strategic sense for your situation.
Building a Stronger Case for EB-1A and EB-2 NIW Approval
The shifting landscape for EB-1A and EB-2 NIW approvals is not a reason to abandon these pathways—it is a reason to approach them with more precision and stronger preparation than ever before. The individuals who succeed in this environment share a common trait: they treat their petition as a legal argument, not a document assembly project.
If you are considering either of these categories, now is the time to assess your evidentiary record honestly, identify gaps before USCIS does, and build the kind of case that holds up under careful review.
Frequently Asked Questions
Q: Have EB-1A approval rates actually gone down, or does it just feel that way?
USCIS data shows variation in approval rates across fiscal years, and recent periods have seen higher RFE issuance rates in the EB-1A category. While the category has not been closed or formally restricted, adjudicators are applying a more exacting standard at the final merits step, which has contributed to more requests for additional evidence and, in some cases, denials for petitions that would have cleared review more easily in earlier years.
Q: What is the most common reason EB-2 NIW petitions get an RFE?
The most frequent issues involve the third Dhanasar prong—establishing that waiving the labor certification requirement is in the national interest. USCIS frequently issues RFEs when petitioners describe their work’s importance in broad terms without connecting it to specific, demonstrable impact or explaining why their continued presence in the U.S. labor market serves an interest that outweighs normal protections for domestic workers.
Q: Can I file both an EB-1A and EB-2 NIW petition at the same time?
Yes. Filing concurrently for both categories is a legitimate and often strategically sound approach. If you qualify for both, concurrent filing maximizes your options and allows you to proceed under whichever petition is approved first, without waiting to learn the outcome of one before pursuing the other.
Q: How long does an EB-1A or EB-2 NIW petition typically take to process?
Standard processing times vary but have generally run from several months up to a year or more depending on USCIS workload and whether a Request for Evidence is issued. Premium processing is available for the I-140 petition underlying both categories, which adjudicates the petition itself within a specific timeframe—though it does not speed up the subsequent steps in the green card process.
Q: If I received an RFE, does that mean my case is likely to be denied?
Not necessarily. Many petitions that receive RFEs are ultimately approved after a thorough and well-organized response. The key is treating the RFE as a specific road map of what USCIS found insufficient, and responding with targeted evidence that directly addresses each point rather than simply submitting more of the same material.
Q: Does working with a lawyer really improve approval odds?
Statistically, represented petitioners tend to have higher approval rates, though the relationship reflects both attorney skill and the fact that experienced attorneys often advise clients to hold off on filing until the evidentiary record is strong enough. The value is not just in filing—it is in the preparation, framing, and strategy that precede the filing.