The EB-1A extraordinary ability classification remains one of the most powerful pathways to a U.S. green card. It requires no employer sponsor, no labor certification, and receives first-preference priority (meaning it receives 28.6% of the total annual employment-based allotment and any visas not used by the EB-4 and EB-5 categories).
But the adjudication landscape in 2026 looks markedly different from even two years ago. As we reported on in our article on trends in EB-1a approval and RFE rates in year two of the Trump administration, Requests for Evidence have surged while approval rates have declined, and USCIS officers are applying a heightened level of scrutiny to the “final merits” stage (though some federal courts have pushed back against this heightened scrutiny). Now more than ever, EB-1As require a strong strategy and convincing explanations of your extraordinary ability. If you are considering an EB-1A filing this year, here is what you need to know.
QUALITY OVER QUANTITY:
Perhaps the most important strategic shift in current EB-1A practice is a move away from the wide net mentality, where one would try to claim every EB-1A criterion one could. In 2026, USCIS focuses less on the sheer number of criteria a petitioner claims and more on the relevance, credibility, and direct connection of the evidence to both the regulatory criteria and the larger narrative of extraordinary ability.
In our experience, and consistent with what practitioners across the field are observing, petitions that focus on criteria with deep, well-documented evidence tend to perform better at the final merits stage than petitions that claim many criteria with thin documentation. A leaner petition that demonstrates genuine strength in its chosen criteria will fare better than one that attempts to cover six or seven but struggles to substantiate most of them. Claiming criteria that are not well-supported can actively weaken the overall record by giving the officer more points to question and more reasons to issue an RFE or denial.
This shift is particularly visible in several areas of recurring RFE activity:
- Original contributions of major significance.
Officers are demanding clearer proof that the petitioner’s work has actually been adopted, implemented, or recognized as influential in the field, not merely that it is novel. Independent validation from third parties who have implemented or built upon the work is far more persuasive than self-serving descriptions of one’s own innovations.
- Scholarly articles.
A long list of publications with low citation counts is more likely to raise concerns than a smaller number of highly influential papers. Adjudicating officers are trained to identify predatory journals and low-impact outlets. Their focus is on how the petitioner’s work has shaped subsequent research or professional practice, not simply how many articles bear their name.
- Judging.
Officers are scrutinizing whether the petitioner’s peer review or judging activity reflects genuine gatekeeping in a selective context, or merely routine professional service. Repeat invitations from competitive venues carry more weight than a handful of ad hoc reviews.
- Critical role in distinguished organizations.
Evidence that reads like a job description will trigger an RFE. Beyond title alone, officers want to see that the petitioner’s specific contributions were essential to the organization’s reputation or activities, supported by objective metrics and independent confirmation. Additionally, Petitioners must show that the organizations have a distinguished reputation. Notoriety of the organization alone is not enough. The evidence should show the organization’s distinguished reputation, longevity, and relative size.
- Membership in Organizations that Require Outstanding Achievement
Officers are requiring clear evidence that the organizations a Petitioner is a part of require outstanding achievements. It is not enough to be recommended by a member of the organization, the evidence must show that the Petitioner was considered because of their achievements. Evidence that can be used to show that Petitioners are selected because of their outstanding achievements are the organizations constitution or bylaws which discuss the qualifications required for membership in the organization and letters of recommendation from a member of the board or other governing body of the organization showing why the Petitioner was chosen to join the membership and which achievements were surveyed when making that decision.
- Expert letters.
Generic letters of praise are increasingly ineffective. The strongest letters come from independently recognized experts, ideally without a prior supervisory or personal relationship to the petitioner, who explain, with specifics and field context, why the petitioner’s particular achievements place them in the top tier of the field nationally or internationally.
The bottom line:
Every claim in the petition of the sort “leading,” “major,” “top,” or “nationally recognized” should be backed by a document and context about who recognized it, how selection works, how many candidates were considered, what time period it covers, and why it matters in the field. If you cannot provide that level of support for a criterion, it may be better to drop it and strengthen the criteria that can in fact be proved decisively.
CURRENT EMPHASIS ON AND THE FUTURE OF THE FINAL MERITS DETERMINATION
The most consequential development in EB-1A practice in 2026 is the growing tension around USCIS’s “final merits determination,” the second step of the two-part adjudicatory framework the agency has used since 2010.
Under this framework, which USCIS adopted through a policy memo interpreting the Ninth Circuit’s 2010 decision in Kazarian v. USCIS, 596 F.3d 1115, adjudication proceeds in two steps. As set forth in the USCIS Policy Manual (Vol. 6, Part F, Ch. 2), at Step One, the officer determines whether the petitioner satisfies at least three of the ten regulatory criteria under 8 C.F.R. § 204.5(h)(3). If so, the officer then proceeds to Step Two, the final merits determination, evaluating whether the totality of the evidence establishes that the petitioner has “sustained national or international acclaim” and is among “that small percentage who have risen to the very top” of their field. Essentially, after assessing the criteria in Step One, USCIS then askes “but is this person really extraordinary?” It is at this second step that an increasing number of otherwise strong petitions are being denied.
The frustration among practitioners is palpable. Petitioners who satisfy five or more criteria (well above the minimum three) are receiving denials at the final merits stage based on broad, conclusory statements about “sustained acclaim” or assertions that the petitioner’s most notable achievements were not recent enough. Officers have, in some cases, effectively imposed a “recency” requirement, treating extraordinary ability as something that must be demonstrated through continuous, year-by-year recognition rather than a body of sustained achievement over a career.
The issue persists that there is no clear, articulable standard for what is enough to show sustained national or international acclaim that is different to what is already established in the criteria analysis of Step One. This leads to RFEs and denials based on vague, subjective judgments about whether the Petitioner is extraordinary enough.
This issue is beginning to generate pushback. On January 28, 2026, the U.S. District Court for the District of Nebraska issued a decision in Mukherji v. Miller that directly challenged the legal foundation of the final merits determination. There, the Court first found that the Final Merits test wad adopted without following the correct rulemaking process, and so was not valid at its inception. Second, the Court found that the “recency” requirement USCIS imposed exists nowhere in the statute, which uses the past tense (extraordinary ability “has been demonstrated”) and does not require indefinite top-of-field status.
To be clear, Mukherji is only persuasive. It is not binding nationwide, and USCIS has not revised its policies in response. Officers will, for the foreseeable future, continue to apply the two-step framework as written in the USCIS Policy Manual. That said, the decision carries real practical significance. It provides persuasive authority that can be cited in RFE responses, AAO appeals, and federal court challenges, particularly where USCIS acknowledges that the regulatory criteria are met but denies the petition based on vague or conclusory final-merits reasoning,
For Petitioners, the practical lesson is twofold. First, the final merits determination is not going away, and every petition should still be built to survive it. That means constructing a narrative that goes beyond checking three boxes. The argument and supporting evidence must tell a cohesive story of sustained impact, field-level recognition, and ongoing influence that makes the case for extraordinary ability obvious from the record. Second, if a petition is denied at the final merits stage despite meeting the criteria, the Petitioner is not necessarily out of options. Careful analysis of the denial, particularly whether the reasoning is specific and supported, or broad and conclusory, may reveal grounds for a meaningful RFE response or other legal challenge.
PRACTICAL TAKEAWAYS FOR 2026 FILERS
- Start with an honest assessment.
Before filing, evaluate whether you can genuinely demonstrate deep, well-documented evidence for at least three criteria. If the evidence has meaningful gaps, it may be worth delaying filing to give time to develop the case pursuing peer review invitations, conference speaking, award applications, or targeted publication, all under the careful advice of counsel. A denied petition creates a record that complicates future filings.
- Choose your criteria strategically.
Focus on the criteria where your evidence is strongest and most independently verifiable, even if it only meets three or four of the criteria.
- Build the final merits narrative from the start.
Do not treat the final merits determination as an afterthought, especially in light of heightened scrutiny of this second step in the Kazarian analysis. The petition letter should weave a coherent thread connecting each criterion to the larger story of why you are among the small percentage at the very top of your field. Timeline, trajectory, and sustained recognition should be evident throughout.
- Invest in strong, independent expert letters.
The most effective letters come from recognized experts who have no prior personal or supervisory relationship with you. They should contain specific examples, reference exhibits by number, and explain, in field-specific terms, why your contributions are significant and place you at the pinnacle of your profession.
- Prepare for an RFE.
With RFE rates at elevated levels across EB-1A filings, RFE should be treated as a normal part of the process rather than a sign of failure. Respond thoroughly, with additional evidence and sharper argumentation.
- Know your post-denial options.
If you receive a denial at the final merits stage, particularly one that relies on vague reasoning or imposes requirements not found in the statute, consult with counsel about whether an argument similar to the one made in Mukherji may support a challenge. Deadlines for appeals and federal court actions can be tight, so early evaluation is critical.
CONCLUSION
The EB-1A remains a viable and powerful immigration pathway, but the margin for error has narrowed considerably. USCIS is asking harder questions, demanding more rigorous documentation, and applying the final merits determination with an intensity that has attracted judicial scrutiny. The petitioners who succeed in this environment will be those who treat the EB-1A not as a checklist exercise, but as a legal case, built on evidence strategy, narrative coherence, and the kind of documentation that makes approval the obvious conclusion. We at Drummond Legal Advisors remain committed to offering our clients the exact sort of detailed analysis in an era of heightened EB-1A scrutiny and look forward to representing you in your EB-1A immigration journey.
Written by John Balloveras, Associate Attorney at Drummond Advisors