2026 EB-1A and NIW Standards Facing Major Overhaul: Reform Analysis and Applicant Strategies
The Department of Homeland Security (DHS) is advancing an employment-based immigration reform plan under RIN 1615-AC85, with EB-1A and NIW adjudication standards potentially undergoing significant changes in 2026. This article breaks down the reform details, timeline, and what applicants should do now.
2026 EB-1A and NIW Standards Facing Major Overhaul: Reform Analysis and Applicant Strategies #
Key Takeaways
- DHS is advancing RIN 1615-AC85 reform plan, expected to publish a proposed rule draft in 2026
- EB-1A's "extraordinary ability" definition will be revised, with evidence types and review standards becoming more explicit and stringent
- NIW's evidence requirements will be formally codified in regulations, ending reliance on case law (Dhanasar)
- O-1A threshold may increase from meeting 3/10 to 5/10, with "comparable evidence" potentially restricted
- As of March 1, 2026, Premium Processing fees have already been adjusted upward
- Recommendation: qualified applicants should act now and file under current standards
2026 is a critical policy window for anyone planning to apply for a U.S. green card through EB-1A (Extraordinary Ability) or NIW (National Interest Waiver). The Department of Homeland Security (DHS) and USCIS are advancing a major reform initiative under RIN 1615-AC85, aimed at comprehensively revising the adjudication standards for employment-based immigration petitions.
This is not a minor update -- it represents the most significant potential change to the NIW review framework since the 2016 Dhanasar precedent, and the first systematic revision since the EB-1A ten criteria were codified in regulations.
This article provides a detailed analysis of the reform's specific content, projected timeline, and what applicants should do right now.
What Is the RIN 1615-AC85 Reform Plan? #
According to official records in the Spring 2025 Unified Agenda, DHS and USCIS are jointly advancing a legislative action titled "Petition for Immigrant Worker Reforms," designated as RIN 1615-AC85.
As of March 2026, this reform plan is at the "Proposed Rule" stage, meaning the draft has not been formally published but is on DHS's priority legislative agenda. Once published, there will be a 60-90 day public comment period, after which it could take effect by late 2026 or early 2027.
The core objectives of this reform include:
- Updating outdated review standards: Some EB-1A criteria definitions have been unchanged for decades and no longer reflect current academic and industrial realities
- Improving adjudication consistency: Reducing subjective differences between adjudicators by formally codifying case law standards in the Code of Federal Regulations
- Strengthening anti-fraud measures: Giving USCIS clearer investigative authority to combat materials fraud
- Responding to policy priority shifts: Raising the bar for talent-based immigration under the current administration's policy direction
How Will EB-1A Standards Be Revised? #
Updates to the Ten Criteria Definitions #
The current EB-1A ten criteria (8 CFR 204.5(h)(3)) have remained largely unchanged in their text for years. Under the reform plan, USCIS intends to:
- Redefine what counts as "extraordinary": How should the current standard of "nationally or internationally recognized" be quantified? The reform may provide more specific reference benchmarks
- Update evidence types: For example, how does "published material about the alien" apply in the internet age? Do blogs, podcasts, and social media citations count?
- Clarify the "high salary" standard calculation method: The current "high salary or remuneration" criterion lacks a uniform benchmark
The two-step analysis framework established by the AAO in Kazarian v. USCIS (2010) -- first checking whether criteria are met, then comprehensively evaluating overall qualifications -- has been the core of EB-1A adjudication. The reform may formally codify this framework in regulations and impose stricter requirements for the "final merits determination" -- meaning that even after satisfying 3 criteria, adjudicators could deny an application on the grounds that the applicant is "not sufficiently extraordinary overall."
Enhanced FDNS Anti-Fraud Review #
Another important direction of the reform is expanding the investigative powers of USCIS's Fraud Detection and National Security (FDNS) division:
| Measure | Impact |
|---|---|
| Expanded site visit authority | USCIS may conduct in-person or phone verification of applicants' workplaces and recommenders |
| Recommender verification | May directly contact recommenders to verify the authenticity of letter content |
| Enhanced background checks | Citation data, publication records, and award authenticity will be more rigorously verified |
| Expanded biometric collection | May require additional categories of applicants to submit fingerprints, photos, and other biometric data |
This will be devastating for the practice of having someone else ghostwrite recommendation letters. If FDNS directly contacts a recommender to ask whether they know the applicant, whether they're familiar with the applicant's research, and whether the letter was actually written by the recommender, any inconsistency could result in denial or even fraud flagging. This is why using genuine independent recommenders and ensuring letter content fully reflects the recommender's own judgment is critically important.
How Will NIW Review Standards Change? #
Dhanasar Framework May Be Formally Codified #
Since 2016, NIW adjudication has relied on the three-prong test established in Matter of Dhanasar (26 I&N Dec. 884):
- The applicant's professional field has substantial merit and national importance
- The applicant is well positioned to advance the field
- Waiving the labor certification requirement is in the national interest
The reform plan may formally codify the Dhanasar three prongs in the Code of Federal Regulations (CFR), rather than keeping them as case law only. This means:
- Standards will become more explicit and uniform
- Adjudicators' discretionary leeway may narrow
- But it may also mean stricter evidence requirements
The PA-2025-03 policy memo effective January 2025 already significantly raised NIW evidence requirements, particularly for recommendation letter quality. If the reform regulations further tighten requirements on top of this, NIW application difficulty may continue to rise. The FY2025 Q3 NIW approval rate has already fallen from 96% in 2022 to approximately 54%.
Possible New "U.S. Employment" Requirement #
According to analysis from multiple immigration attorneys, one of the most controversial aspects of the reform is: EB-1A and NIW may add a requirement to demonstrate "intent to work in the U.S."
Currently, one of NIW's core advantages is not requiring employer sponsorship (self-petition). If the reform requires applicants to prove they have a clear plan to work in the U.S. or already have a job offer, it would fundamentally change NIW's nature, with particularly significant impact on overseas applicants.
O-1A Visa Threshold May Rise Significantly #
Although O-1A is a nonimmigrant visa rather than a green card, the reform's spillover effects are worth noting:
According to Forbes reporting, the reform may raise O-1A requirements from meeting 3 of 10 criteria to 5 of 10. Additionally, the use of "comparable evidence" may face stricter limitations, particularly in industries that don't typically feature annual awards.
If you currently hold O-1A status and plan to transition to EB-1A, this change may affect your timeline planning.
March 2026 Premium Processing Fee Increase #
Beyond adjudication standard reforms, USCIS Premium Processing fees officially increased starting March 1, 2026:
| Category | New Fee | Processing Time |
|---|---|---|
| I-140 Premium (15-day) | $2,805 | 15 calendar days |
| I-140 Premium (45-day) | $1,685 | 45 calendar days |
This is the second fee increase since 2024. While the increase is modest, it reflects USCIS's ongoing trend of using fee adjustments to cover operational costs.
March 2026 Visa Bulletin: Good News and Bad News #
Good News #
- EB-2 worldwide (except China, India) becomes Current -- first time since November 2022
- EB-2 India advances 11 months, a rare large jump
- EB-1 China advances 28 days -- modest but positive direction
- USCIS confirms March uses the Dates for Filing chart, allowing more applicants to file I-485 early
Bad News #
- EB-2 China (including NIW) backlog unchanged, with a wait time of 4 years and 4 months
- EB-1 China wait time has reached 2 years and 10 months and continues to extend
- USCIS total case backlog exceeds 11 million, an all-time high
What Is the Specific Impact on Chinese Applicants? #
Applicants born in mainland China face a particularly complex situation:
| Dimension | Current Status | Post-Reform Possibility |
|---|---|---|
| NIW approval rate | FY2025 Q3 ~54% | May continue declining |
| EB-1A approval rate | FY2025 Q3 ~66.6% | May decline |
| EB-2 backlog wait | 4 years and 4 months | May further extend |
| EB-1 backlog wait | 2 years and 10 months | Uncertain |
| Recommendation letter review | PA-2025-03 already tightened | May become stricter |
| FDNS verification | Increasing | Will further intensify |
As of June 2025, 92,153 Chinese nationals are waiting for employment-based immigration, including 13,169 for EB-1 and 34,608 for EB-2. The contradiction between scarce green card quotas (~7% per-country cap annually) and surging applicant numbers is becoming increasingly acute.
What Should You Do Now? #
Whether you plan to apply for NIW or EB-1A, the current policy window may be the last period under "old standards" since the 2016 Dhanasar precedent. Once the RIN 1615-AC85 draft is published and takes effect, adjudication thresholds will most likely increase.
If You're Already Largely Prepared #
Launch Your Application Immediately
Don't wait. File your I-140 under current standards. Even with a long backlog, the earlier your priority date, the better.
Ensure Recommendation Letter Quality
PA-2025-03 has already raised recommendation letter standards. Use genuine independent recommenders and ensure each letter contains specific, verifiable evaluative content.
Consider NIW + EB1A Dual Filing
In the context of extending backlogs and policy uncertainty, filing both NIW and EB-1A simultaneously is the best risk-diversification strategy. The two applications don't affect each other and are adjudicated independently.
If You're Still Building Your Profile #
Accelerate Evidence Accumulation
Focus on the most valuable evidence types: high-quality publications, independent citations, peer review records, and field awards. You don't need to cover everything, but each item should have depth.
Build Your Recommender Network
Start expanding your academic network now. Attend conferences, contact scholars who cite your papers, and register on review platforms. Finding 3-5 independent recommenders who truly understand your research takes time.
Monitor Reform Developments
Follow the Federal Register for the latest progress on RIN 1615-AC85. Once the proposed rule draft is published, the public comment period is the best time to understand the specific changes.
When will the reform take effect?
RIN 1615-AC85 is currently at the "Proposed Rule" stage, with the draft expected to be published in 2026. After publication, there will be a 60-90 day public comment period, followed by publication of the final rule. The earliest possible effective date is late 2026 or 2027, but the exact timing is uncertain.
Will already-filed I-140s be affected?
Generally, new rules apply to applications filed after the effective date. Applications already filed and under review are typically adjudicated under the standards in effect at the time of filing. This is one of the key reasons we recommend filing as early as possible.
Is NIW still worth applying for?
Yes. Although approval rates have declined, NIW remains a self-petition green card pathway that doesn't require employer sponsorship, and it continues to be one of the most important immigration pathways for researchers and highly educated professionals. The key is improving application quality, not abandoning this pathway.
Will dual filing NIW + EB1A create mutual interference?
No. The two applications are adjudicated completely independently, each with its own priority date. Even if one is denied, it doesn't affect the other. The advantage of dual filing: NIW has a lower threshold and can be approved first to lock in a priority date, while EB-1A has a shorter backlog and can become current sooner.
How common are FDNS investigations?
Currently, FDNS investigations in EB-1A and NIW cases are increasing in frequency but still don't occur in every case. High-risk cases (such as recommenders with financial interests tied to the applicant, or suspicious evidence materials) are more likely to trigger investigations. Ensuring all materials are truthful and verifiable is the best preventive measure.
How does the fee reform affect me?
As of March 1, 2026, Premium Processing fees have been adjusted upward (I-140 premium $2,805). Base filing fees completed inflation adjustments on January 1. We recommend confirming the latest USCIS fee schedule before filing your application.
This article is based on publicly available policy information and immigration attorney analysis as of March 2026, and is for informational purposes only -- it does not constitute legal advice. Policies may change at any time. We recommend monitoring the USCIS website and Federal Register for the latest information. For legal advice, please consult a licensed U.S. immigration attorney.