The Proposed 'Higher Bar' for EB-1A and NIW Has Been Withdrawn. Here Is What That Actually Means.

Why this rule had the EB-1A and NIW community on edge

Late in 2024, when the incoming administration started publishing regulatory agendas, one item caught the attention of immigration attorneys and EB-1 practitioners almost immediately. The agenda listed a rule called "Petition for Immigrant Worker Reforms" under regulatory number RIN 1615-AC85. The scheduled target for a Notice of Proposed Rulemaking was January 2026. The description was brief but clear: USCIS planned to update evidentiary standards for extraordinary ability petitions (EB-1A), outstanding professors and researchers (EB-1B), national interest waiver petitions (EB-2 NIW), and EB-3 petitions. The phrase "tighten evidentiary standards" started circulating through immigration forums, LinkedIn posts, and attorney alerts almost immediately.

For context: EB-1A and NIW have been among the fastest-growing petition categories in recent years. Hundreds of thousands of applicants — particularly those born in India — have turned to EB-1A and self-sponsored NIW petitions as an alternative to waiting decades in the EB-2 employment-based backlog. The possibility that USCIS would raise the evidentiary bar precisely when so many people depend on these categories created real anxiety in the community. Attorney alerts were circulating. Forum threads ran into hundreds of comments. The question everyone was asking was how much harder it was about to get.

What the proposed rule would have done

Before it was withdrawn, RIN 1615-AC85 was expected to do two main things. First, it would have codified the Kazarian standard in formal regulatory text. The Kazarian decision — from the Ninth Circuit Court of Appeals in 2010 — established a two-step framework for evaluating extraordinary ability petitions: step one checks whether the evidence satisfies at least three of the ten regulatory criteria; step two is a final merits determination where USCIS evaluates whether the totality of the evidence shows sustained national or international acclaim and that the person is among the small percentage who have risen to the very top of their field. This two-step process has been USCIS policy for years, but it existed in policy guidance, not regulation. The proposed rule would have embedded it in formal regulatory language with greater enforcement weight.

Second, the rule was expected to raise specific evidentiary thresholds for criteria like 'critical role,' 'high salary,' 'published material about the beneficiary,' and 'original contribution of major significance in the field.' Immigration practitioners had been warning since early 2025 that codifying Kazarian in a more restrictive form could make approvals harder for applicants who rely on criteria that are common in certain academic or research fields but not truly elite by global standards — citation counts in niche subfields, invited conference presentations, academic awards that are widespread in the field.

For NIW petitions, the Matter of Dhanasar three-prong framework — which has governed NIW adjudications since 2016 — was expected to be subject to codification with potentially tighter language around what constitutes 'substantial merit and national importance,' what it means to be 'well-positioned to advance the endeavor,' and when a labor market waiver genuinely benefits the United States. Applicants in entrepreneurship, public health, and certain STEM fields who had benefited from relatively liberal NIW adjudication were watching this closely.

What 'withdrawn' actually means — and how to verify it

The current Unified Regulatory Agenda, published by the Office of Information and Regulatory Affairs in 2026, lists nineteen active USCIS rules. RIN 1615-AC85 is not among them. Under Executive Order 14192 — signed by the current administration — an agency generally cannot publish a proposed rule that does not appear on the most recently published Unified Agenda. The regulatory agenda is the formal commitment mechanism; being absent from it effectively closes the door on issuing the rule until it is relisted.

"Withdrawn" in this context means DHS has classified the rulemaking as a completed action, not as an active or pending one. This is different from being "delayed" — a delayed rule is still on the agenda with a revised publication date. A withdrawn rule is off the agenda entirely. For RIN 1615-AC85, the current classification is off the agenda with no indication it will be relisted.

You can verify this at reginfo.gov, where USCIS rulemaking records are publicly searchable. The most recent agenda publication classifies 1615-AC85 as a completed action rather than a rule in pre-rule, proposed rule, or final rule stage. "Completed" here does not mean a final rule passed — it means the rulemaking track closed without producing one.

The legal framework that has not changed

Because no proposed rule was ever published — let alone finalized — the existing standards for EB-1A and NIW petitions are unchanged. For EB-1A, that means the two-step Kazarian framework applied to the ten regulatory criteria at 8 CFR § 204.5(h)(3): nationally or internationally recognized awards; membership in associations requiring outstanding achievement; published material about the person in professional publications; judging the work of others; original scientific, scholarly, or business-related contributions of major significance; authorship of scholarly articles; artistic displays; critical or leading role for an organization with a distinguished reputation; high salary relative to peers; commercial success in the performing arts.

For NIW, the Matter of Dhanasar framework from 2016 is the governing standard: the proposed endeavor has substantial merit and national importance; the petitioner is well-positioned to advance the proposed endeavor; and on balance it would be beneficial to the United States to waive the normal requirements of a job offer and labor certification. No new formal standard has replaced this. The regulations at 8 CFR § 204.5 have not been amended.

Any source telling you USCIS has formally tightened EB-1A or NIW standards through a new regulation is wrong. No NPRM was published. No final rule was issued. The withdrawal confirms the opposite: the proposed tightening never made it into binding law.

What people are getting wrong about what 'withdrawn' means

The misread to avoid is: 'The rule was pulled so USCIS got easier.' Withdrawal of the proposed rule has no effect on how individual adjudicators evaluate evidence in 2026. The adjudication environment is meaningfully harder than it was in 2022 or 2023, and it got harder through changed internal guidance, increased officer scrutiny, and institutional direction — not through a formal new regulation. Pulling the proposed rule does not reverse any of those changes.

The persistent myth in immigration forums is that if there is no new rule, there is no legal basis for increased scrutiny. That is not how administrative agencies work. USCIS adjudicators operate under policy memos, internal training guidance, and supervisory review. An adjudicator applying a more demanding interpretation of 'original contribution of major significance' or 'judging the work of others in the field' does not need a published rule to do so. The legal standard in the regulation has not changed; the practical threshold applied by officers in 2026 has.

The approval rate reality — harder without a new rule

The data makes this concrete. EB-1A approvals in Q2 of fiscal year 2026 came in at 41.7 percent — a significant drop from 66.9 percent in fiscal year 2025. In February 2026, the approval rate for regularly processed EB-1A I-140 petitions was 43 percent, with an RFE rate reaching 49 percent. For EB-2 NIW, the February 2026 approval rate was 41 percent. These numbers reflect a hard adjudication environment that emerged entirely without a new formal regulation taking effect.

What explains the gap between unchanged formal standards and sharply declining approval rates? Adjudicators are scrutinizing documentation more closely. RFEs are longer and more specific, demanding direct comparisons to peers in the field rather than general statements of excellence. Cases that would have generated an approval in 2022 are generating an RFE in 2026 — not because the regulatory criteria changed, but because officers are applying the existing criteria more rigorously at the final merits determination stage.

This is the nuance most forum posts miss. The feared rule is dead. The harder adjudication environment it was expected to formalize is already operating in practice. Applicants who built their cases assuming a 2022-era pass rate are confronting 2026-era scrutiny and getting RFEs instead of approvals.

What to focus on if you're filing EB-1A or NIW right now

The withdrawal of RIN 1615-AC85 means you are not racing a new regulatory deadline. No rule takes effect that would formally raise the bar starting on a specific future date. That is worth knowing — and worth communicating clearly to anyone who has been delaying an EB-1A or NIW filing out of fear that a rule change was about to drop.

What it does not mean is that your case can rely on the evidentiary approach that worked three years ago. If your extraordinary ability case rests primarily on invitation letters from conference organizers, a citation count that is high within your subfield but modest by absolute standards, or reviewer roles you perform routinely as part of standard academic duties, expect a detailed RFE asking you to show how these items distinguish you from similarly credentialed peers. Build the petition as if the scrutiny will be rigorous, because the data says it will be. Document original contributions with specific evidence of impact on the field, not just evidence that the contribution exists. Recommendation letters need to go beyond praising your work — they need to place you against peers, name who you compare favorably to and why, and establish what specifically puts you at the top of the field.

This article is informational only and does not constitute legal advice. EB-1A and NIW petitions involve highly fact-specific determinations that depend on your field, the criteria you are relying on, and the state of adjudication at the time of filing. Consult a licensed immigration attorney before making any filing decisions.