EB-1A Proposed Rule 2026: What RIN 1615-AC85 Means for Your Petitions

The most consequential regulatory change in EB-1A immigration law in over a decade has been on the books since September 2025 — and it still hasn't been published. USCIS listed "Petition for Immigrant Worker Reforms" (RIN 1615-AC85) in the Spring 2025 Unified Regulatory Agenda with an expected NPRM date of January 2026. As of May 2026, the formal proposed rule has not appeared in the Federal Register.

That means the filing window is still open.

For attorneys with clients who are borderline under current standards, who rely on comparable evidence, or who would benefit from the existing deference to prior approvals — every month the NPRM remains unpublished is a month during which filing under current rules is strategically optimal. This guide explains what the rule proposes, what the current adjudication climate means for timing, and which client profiles should move immediately.

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What RIN 1615-AC85 Proposes

The official regulatory agenda entry for RIN 1615-AC85 describes a rule to "amend regulations governing employment-based immigrant petitions in the first, second, and third preference classifications" with the stated objectives of implementing reforms to ensure program integrity, defining bona fide job offer, and clarifying site visit authority.

The rule explicitly calls out EB-1A (individuals of extraordinary ability) and NIW for regulatory updates. Practitioner analysis from Berardi Immigration Law confirms the rule will "spell out more detailed evidentiary requirements for specific employment-based green card categories." The regulatory agenda describes the rule as addressing three categories of change:

Codification of existing policy guidance. USCIS has issued dozens of policy memos over two decades — on Kazarian's two-step framework, on standards for specific criteria, on deference to prior approvals — that live in the Policy Manual rather than in 8 CFR 204.5(h). The proposed rule would convert this guidance into binding regulatory text, giving it the force of formal law and reducing officers' ability to apply it inconsistently.

Stricter evidentiary requirements. The rule is anticipated to establish "more detailed and explicit evidentiary requirements" for EB-1A. What that means in practice: criteria that are currently interpreted broadly (Criterion 5's "major significance," Criterion 3's "major media") may receive narrower regulatory definitions. The fallback comparable evidence pathway is expected to be restricted to genuinely exceptional circumstances.

Site visit authority and fraud control. The rule will expand the Fraud Detection and National Security (FDNS) unit's authority to conduct site visits on I-140 petitions — a category that was previously largely outside routine FDNS scrutiny.

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The Four Anticipated Changes That Matter Most

1. Comparable evidence restrictions

Under current 8 CFR 204.5(h)(4), petitioners whose occupation does not readily lend itself to the standard criteria may submit "comparable evidence" that demonstrates equivalent achievements. This provision has been broadly used by practitioners in emerging fields — AI researchers, climate scientists, startup founders — to document extraordinary ability through non-traditional measures when formal publication, judging, or award records are thin.

The proposed rule is expected to limit comparable evidence to genuinely exceptional situations where the standard criteria are structurally inapplicable — not merely inconvenient or thin. For petitioners currently building strategies around comparable evidence, this is the single most consequential anticipated change.

2. Deference policy elimination

The Biden administration's deference policy directed USCIS officers to give meaningful deference to prior petition approvals, particularly in cases where the same petitioner had previously been approved and circumstances had not materially changed. This was protective for petitioners renewing status, filing for EB-1A after an approved O-1, or resubmitting after an initial denial was reversed.

The Trump administration is expected to eliminate this policy through the new rule. Analysis from Reddy Neumann Brown PC identifies the deference reversal as one of the highest-impact procedural changes anticipated. Each petition would be evaluated fresh, regardless of prior approvals. For attorneys with clients who successfully obtained O-1A under more favorable adjudication conditions, an EB-1A built on the same evidence profile cannot assume the same outcome.

3. Expert letter quality standards

RIN 1615-AC85 is anticipated to formalize a higher standard for Criterion 5 expert letters — the evidence type most likely to determine outcomes in original contributions cases. Letters from close colleagues, co-authors, prior supervisors, or anyone with a direct professional relationship to the petitioner are expected to receive reduced weight unless backed by verifiable third-party data: citation counts, adoption statistics, external implementation records, independent funding records.

Independent letters from practitioners at unaffiliated institutions who can document the petitioner's specific impact on the field in measurable terms would become the operating standard rather than a best practice.

4. Heightened scrutiny of publication evidence

Criterion 3 (published material about the petitioner) currently allows publications in "professional or major trade publications or other major media." The proposed rule is expected to narrow what counts as "major media" — potentially excluding regional trade publications, sponsored content, aggregator republications, and outlets without significant independent readership.

For petitioners whose Criterion 3 evidence relies heavily on industry newsletters, regional business press, or smaller professional publications, pre-rule filing preserves these submissions under the current, more flexible standard.

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The Criteria Threshold Question

The most-discussed anticipated change — and the most uncertain — is whether RIN 1615-AC85 will raise the criteria threshold from the current three of ten to something higher, possibly five of ten. This has circulated widely in practitioner discussions but has NOT been confirmed in any regulatory agenda text or official USCIS statement.

The regulatory agenda description emphasizes "evidentiary requirements" rather than "threshold modification" — suggesting the focus is on evidence quality, not numeric count. But the practical effect of higher quality standards for each criterion may be equivalent to a threshold increase for borderline petitioners: a case that qualified on three weakly-documented criteria under the current standard may not qualify even if the numeric threshold stays at three.

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Who Should File Now

Not every client needs to accelerate their timeline. The proposed rule will not retroactively invalidate petitions filed or approved before it takes effect — finalized regulations apply prospectively. For clients who are strong candidates under any plausible version of the rule, the timing pressure is minimal.

The urgency applies to specific profiles:

Clients who rely on comparable evidence. If the comparable evidence pathway is restricted to genuinely exceptional circumstances, petitioners currently using it as a primary strategy for Criterion 5 or as a bridge for non-traditional fields face the highest exposure. Filing under current standards while comparable evidence is more broadly available is the clearest strategic rationale.

Clients with O-1A approval histories. The Biden-era deference to prior approvals may be gone by the time the final rule is effective. An O-1A-approved petitioner whose EB-1A uses similar evidence cannot assume deference will protect the filing. Acting now secures review under a framework that still recognizes prior approval history as a favorable factor.

Indian H-1B holders with EB-2 priority dates before February 2022. The EB-1 India priority date currently sits at February 2022, versus EB-2 India's April 2013. For Indian nationals with EB-2 priority dates in the 2014–2021 range — effectively locked for a decade or more — EB-1A provides a path to near-term adjustment of status that EB-2 cannot. Filing EB-1A under current standards before the proposed rule restricts the evidence base is directly tied to adjustment opportunity.

Practitioners in non-traditional extraordinary ability fields. Emerging technology, AI research, climate science, and similar fields without long publication traditions or formal award structures have benefited from the current policy posture toward comparable evidence and flexible criterion interpretation. Under a stricter rule, these fields face a harder qualification path.

Borderline three-criteria petitions. If your client qualifies cleanly on three criteria and the Step 2 argument is solid, filing now preserves the case under current standards. A three-criteria petition filed before the rule takes effect cannot be reviewed under a five-criterion threshold (if one is eventually adopted) retroactively.

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What Changes After the NPRM Publishes

Once the NPRM appears in the Federal Register, practitioners will have 30–60 days to submit public comments. This is the profession's formal opportunity to shape the final rule. The immigration bar's response to NPRMs has historically influenced which provisions survive finalization and how definitively they are applied.

AILA and immigration law organizations typically coordinate comment campaigns for significant employment-based rule changes. Practitioners can file comments directly at regulations.gov once the NPRM docket is opened. Individual practitioners can submit evidence of the rule's impact on real cases, client populations, and access to immigration benefits. Comments that are specific, factually grounded, and address the regulatory record are more likely to be considered than general opposition statements.

After the comment period, DHS will review comments, potentially revise the proposed rule, and publish a final rule. The final rule typically includes a future-effective date of 30–180 days after publication to allow practitioners to adapt. Petitions filed before the effective date are reviewed under the rules in place at filing.

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How to Build a Pre-Rule Petition That Survives Post-Rule Scrutiny

Even petitions filed before the rule takes effect will eventually undergo adjudication. In the current environment — with the NPRM pending and officers already applying informal heightened scrutiny — building a petition that would qualify under either standard is the conservative approach.

Use the standard criteria wherever possible. Reserve comparable evidence for criteria that are genuinely inapplicable to the petitioner's field. Document why the standard criteria don't apply before presenting comparable evidence — this creates a record that survives scrutiny under the anticipated narrowed standard.

Build independent expert letters. Five to eight letters from practitioners at independent institutions, citing specific evidence of impact by reference to measurable outcomes, is the current gold standard. This preparation is future-proof regardless of how the rule characterizes letter quality. The EB-1A expert letters guide covers the current standard in detail — the anticipated rule makes that standard the minimum, not the ceiling.

Document third-party adoption for Criterion 5. Under the anticipated rule, original contributions evidence must include verifiable third-party adoption: named organizations or practitioners outside the petitioner's employer who have implemented, cited, or built upon the petitioner's specific contribution. This is already the current best practice — treating it as required now insulates against any change.

Select evidence for the record-building plan based on the anticipated post-rule standard. Clients who are 12–24 months from filing have time to generate additional evidence. Targeting criteria that will clearly qualify under stricter standards — judging panels at recognized conferences, published scholarly articles in verifiable major-media outlets, salary documentation at a provably top-tier compensation level — reduces exposure to whatever the final rule defines as qualifying evidence.

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Interaction with Mukherji v. Miller and PA-2025-16

The proposed rule operates on top of two 2025–2026 developments in EB-1A adjudication. PA-2025-16 (August 2025) confirmed that EB-1A adjudication is non-discretionary — there is no freestanding discretionary override available to officers. Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb. Jan. 28, 2026), challenged the Kazarian Step 2 framework as unlawfully adopted without APA rulemaking.

RIN 1615-AC85 would codify the Kazarian framework in binding regulations — which cuts both ways. Formally codifying Step 2 makes it harder for courts like Mukherji to challenge Step 2 as unlawfully adopted, since it would now rest on formal rulemaking rather than a policy memo. But codification also makes Step 2 harder for USCIS to change unilaterally through future policy alerts, and gives petitioners clearer grounds to challenge denials that deviate from the codified standard.

For the current Mukherji challenge landscape, petitioners denied at Step 2 should act before the final rule codifies Step 2, since post-codification APA challenges based on lack of notice-and-comment rulemaking would be resolved by the new rule's own rulemaking process.

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Monitoring the Regulatory Timeline

The Federal Register USCIS 2026 index is the authoritative source for when the NPRM is published. Once it appears, the USCIS Policy Manual updates page will also reference related policy changes.

Practitioners should set up alerts for:

• Federal Register notifications for DHS/USCIS NPRMs
• RIN 1615-AC85 specifically at regulations.gov
• AILA alerts and practice advisories on the proposed rule
• Comments filed by major immigration law organizations during the comment period

The proposed rule is not the last word on these standards — it will be commented on, revised, and potentially modified significantly from the initial NPRM draft. The final rule, not the NPRM, will be the operative text. But for filing strategy purposes, the NPRM publication is the signal that the window has an announced closing date.

For attorneys managing active EB-1A dockets, Immigration Copilot's evidence mapping and petition generation tools are built on the current evidence standards — and can be used to evaluate whether a client's profile meets not only the current three-criteria threshold but the conservative five-criteria preparation standard that protects against any plausible version of the final rule. Start a free review of your client's evidence profile.