EB-1A and NIW Denial Rates Hit Multi-Year Highs: What 2025–2026 Data Means

The numbers no longer tell a comfortable story. Through the third quarter of fiscal year 2025, EB-1A extraordinary ability approval rates have fallen to their lowest point in three years. NIW has dropped even further from its peaks, and the filing volumes flooding USCIS show no sign of slowing. For attorneys managing EB-1A and NIW caseloads, this data is a mandate to change petition strategy — not eventually, but now.

The Trend Line: Both Paths Are Narrowing

Neither EB-1A nor NIW has been immune. What changed is the pace of deterioration and, more importantly, where in the adjudication process petitions are failing.

For EB-1A, the trajectory across FY2025 tells the story clearly. USCIS reported a 74.9% approval rate in Q1, followed by 72.7% in Q2, then 67% in Q3 — a seven-point drop across the fiscal year and the lowest approval rate in three years according to Stelmakh & Associates' tracking of quarterly adjudication data.

NIW moved differently. FY2023 ended at 79.99% approval. FY2024 fell to 43.31% — a 37-point collapse in a single fiscal year. Q1 and Q2 FY2025 partially recovered to the low-to-mid 60s, but Q3 fell again to 54%, described by Tryalma's USCIS data tracking as the lowest NIW approval rate in more than a year.

EB-1A: The Step 2 Problem

The quarterly approval rate decline obscures a more specific problem: it is not Step 1 (the ten criteria threshold) where most petitions are failing. It is Step 2.

Under Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), USCIS must first determine whether the petitioner has satisfied at least three criteria, then separately evaluate whether the totality of the evidence demonstrates sustained national or international acclaim. This final merits determination — Step 2 — is where the adjudication has tightened most.

The USCIS Policy Manual Volume 6, Part F, Chapter 2 instructs officers to consider whether the evidence as a whole establishes the petitioner is among the small percentage at the very top of the field. That language — "small percentage at the very top" — is being applied more literally. Petitions that assembled three criteria but positioned the petitioner as competent rather than exceptional are failing at Step 2 even when Step 1 passes.

Fakhoury Law Group's analysis of 2026 trends notes that USCIS is emphasizing whether applicants truly stand at the top of their field — not merely whether they have performed activities that technically qualify under each criterion.

The practical implication: a petition that lists three criteria met and moves on has a high probability of a Step 2 denial or NOID. Each criterion section must now argue not just "this evidence qualifies under C4" but "this evidence — combined with everything else — establishes that this person is at the very top." See the Kazarian complete reference guide for the doctrinal framework.

For the two criteria that generate the most RFEs — Criterion 5 (original contributions of major significance, 8 CFR 204.5(h)(3)(v)) and Criterion 8 (critical or leading role, 8 CFR 204.5(h)(3)(viii)) — the scrutiny is even sharper. Practitioners consistently report that these two criteria account for a disproportionate share of all EB-1A RFEs. Both require evidence that extends beyond the petitioner's own field, and both require USCIS to accept qualitative significance arguments that adjudicators now frequently contest. Deep dives on C5 original contributions and C8 critical role remain the highest-leverage areas for petition improvement.

What is actually failing at Step 2 breaks into three repeating patterns. First, petitions that list criteria satisfaction without connecting that evidence to field-wide impact — a citation record that does not benchmark against field averages, or a salary figure without the BLS percentile context. Second, petitions where the legal brief reads as a document index rather than an argument — paragraphs organized around exhibit numbers rather than around the thesis that the petitioner is at the very top. Third, petitions where the expert letters are generic endorsements rather than field-specific comparisons — letters that say the petitioner is "recognized" without specifying recognized by whom relative to whom.

Addressing all three requires a structural change to how the petition brief is assembled, not just a stronger evidence set. The brief must lead with the conclusion — extraordinary ability, established — and then marshal evidence in service of that conclusion rather than presenting evidence and hoping the officer draws the inference.

NIW: The 80-to-54 Crash

The NIW story is more dramatic in percentage terms. From near-universal approval (the category ran above 90% for most of FY2018 through FY2022) to a 43.31% approval rate in FY2024, the NIW category has undergone the most significant adjudication shift in its modern history.

The Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) three-pronged test governs NIW adjudications: the proposed endeavor must be of substantial merit and national importance; the petitioner must be well-positioned to advance the endeavor; and it must be beneficial on balance to waive the job offer and labor certification requirements. All three prongs are now being scrutinized more carefully than at any point since Dhanasar replaced the prior Matter of New York State Dep't of Transportation (NYSDOT) standard.

The third prong — the waiver prong — is where most rejections occur. USCIS is questioning whether individual researchers, technologists, and consultants have sufficiently articulated why their specific work advances U.S. national interests beyond general sector benefit. An NIW petition that argues "AI research benefits the national economy" is routinely denied. One that ties specific research outputs to named federal priorities (CHIPS Act implementation, pandemic preparedness, infrastructure resilience) has a meaningfully better outcome.

The first prong — substantial merit and national importance — has also become more demanding. It is no longer sufficient to describe the endeavor as important to the field. The petition must demonstrate that the field itself, and the petitioner's specific role within it, has demonstrable national importance. For technology workers, this requires connecting the proposed endeavor to either a named federal initiative or a documented economic/security priority. For healthcare researchers, it typically requires connecting to population health data or federal health agency priorities. Generic characterizations of importance are being rejected at the first prong even before the officer reaches the waiver analysis.

Fakhoury Law Group and Boundless's Q3 2025 analysis both observe that USCIS is applying stricter standards to national interest arguments particularly in technology, consulting, and research — the three fields that account for the overwhelming majority of NIW filings.

Why Volume Surge Made Everything Harder

Adjudication quality partly tracks adjudicator workload. NIW filing volumes grew 190% between FY2022 and FY2024 — from 22,049 petitions received to 63,549, with a pending inventory exceeding 80,000 cases. EB-1A filings rose approximately 50% year-over-year in FY2025, with the pending backlog reaching 16,000 cases — an all-time high.

This volume surge preceded the approval rate collapse by roughly one to two fiscal years, which is the typical lag between filing surge and adjudication backlash. The pattern is consistent with prior cycles: mass filings attract USCIS attention, adjudicators raise standards in response, approval rates drop, practitioner bar adjusts.

The added complexity is that USCIS centralized all employment-based I-140 adjudications at SCOPS (Service Center Operations) — eliminating the prior split between Texas and Nebraska service centers. Centralization standardized criteria but also eliminated the informal regional variation that previously allowed some practitioners to route filings strategically.

What USCIS Is Actually Doing Differently

Beyond raw denial rates, Fakhoury Law Group's 2026 analysis identifies a specific operational change: USCIS has implemented AI tooling in RFE drafting. The practical result is that RFEs are longer and more numerous, but the issues raised are sometimes less precisely targeted than those written entirely by experienced adjudicators. This creates a new challenge — a poorly-focused RFE is still a three-month timeline extension, and the response must address every issue raised regardless of its merit.

The correct response strategy is not to address only the RFE questions literally, but to use the RFE response as an opportunity to reframe the entire petition narrative. The RFE response brief should argue Step 2 directly, provide additional comparator evidence establishing the petitioner's position at the top of the field, and submit any supporting letters that were not included in the initial filing.

The EB-1A RFE prevention playbook covers patterns in detail. For attorneys now receiving RFEs on recently filed petitions, the core adjustment is to treat the response as a full re-brief, not an answer to a list of questions.

Six Petition Adjustments for 2026

The decline in approval rates is not evidence that the categories are impossible. EB-1A still approved 67% of Q3 FY2025 petitions. NIW approved 54%. The approvals are going to petitions that anticipate the current adjudication climate.

1. Open with the final merits argument. The petition brief should state the Step 2 thesis in the first two paragraphs: who this person is in their field, what achievement places them at the top, and why that matters. Everything that follows is evidentiary support for that thesis.

2. Quantify comparative position explicitly. USCIS wants to know where the petitioner stands relative to peers. Citation counts compared to field averages, award selectivity rates, salary at the Nth percentile — these are more persuasive than bare recitation of achievements. For EB-1A, the evidence strategy guide shows how to frame this effectively.

3. For NIW: name the federal priority. Every NIW petition should include a one-paragraph section identifying the specific U.S. government priority, policy, or statutory initiative that the petitioner's work advances. The CHIPS Act, the Inflation Reduction Act, the National Biodefense Strategy, the National AI Initiative — tie the proposed endeavor to named federal action, not general economic benefit.

4. Select the right three criteria for EB-1A. Not all combinations of three criteria are equal in current adjudications. Criterion 4 (judging) and Criterion 6 (scholarly articles) have relatively stable approval patterns. Criterion 5 and Criterion 8 remain high-value but high-risk. Avoid leading with a criterion where the evidence is thinner than two alternatives.

5. Get stronger expert letters. The current adjudication climate is devaluing generic letters ("Dr. Smith is a leading expert in her field"). Letters that include field-specific comparators — "Of the 200 papers on this topic, only three have been cited more than 50 times; Dr. Smith's paper is one of them" — are materially more persuasive. See the expert letters guide for drafting templates.

6. Consider O-1A as an interim bridge. Fakhoury Law Group reports O-1A visa approvals above 90% throughout FY2025 — a stark contrast to EB-1A and NIW. For clients with strong extraordinary ability evidence who are current on their priority date or who can use an O-1A to maintain status, the O-1 bridge while the EB-1A adjudicates is increasingly standard practice.

Processing Timeline Reality Check

Standard EB-1A I-140 processing is running approximately 21 months. Standard NIW is 14–19 months. Neither figure is attorney-favorable when clients are making career decisions.

Premium processing cuts EB-1A to 15 business days for $2,965, and NIW to 45 business days at the same fee. For petitions with strong evidence and a well-constructed brief, the $2,965 investment eliminates the timeline uncertainty and is nearly always worth making.

The table above reflects Q3 FY2025 official USCIS data. Monthly figures from private tracking platforms show continued volatility into early 2026.

Choosing the Right Path When Both Are Hard

For most high-skilled workers with strong evidence, EB-1A remains the preferable immigration path despite its lower approval rate. The reasons are structural: EB-1A does not require a proposed endeavor argument, does not require tying work to federal policy priorities, and produces a green card faster than NIW for priority-date-current applicants.

NIW is the right choice when: (a) the petitioner cannot satisfy at least three EB-1A criteria, (b) the petitioner's work ties cleanly to a specific federal priority that can be articulated in writing, or (c) the petitioner's extraordinary ability evidence is thin but their national interest argument is exceptionally strong.

When both paths are viable, filing both concurrently — EB-1A for the stronger path and NIW as a fallback — is a strategy that remains available at modest additional cost and is increasingly used by practitioners navigating the current uncertainty.

The broader message from 2025–2026 data is not that these categories are broken. It is that the years of relatively generous adjudication that drove the filing volume surge are over. Petitions that would have been approved under the standards of FY2022 or FY2023 are being denied. The adjustment required is not a different client — it is a more precisely constructed brief.

For attorneys who want to audit their current approach against the 2025–2026 adjudication climate, Immigration Copilot's petition knowledge base maps each piece of evidence to the criteria it supports and flags where the Step 2 argument is thin. See how it works or explore the EB-1A petition guide for the foundational framework.

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Data in this article reflects official USCIS quarterly adjudication statistics through Q3 FY2025 and private case-tracking data from Lawfully for early 2026. For the latest quarterly data, visit the USCIS Immigration and Citizenship Data page.