Is USCIS Ignoring Your EB-1A Evidence?

Is USCIS Ignoring Your EB-1A Evidence?

The U.S. immigration system is undergoing significant changes, leaving many high-skilled professionals uncertain about their future. Courts are challenging long-standing policies, the H-1B lottery system is evolving, and economic shifts are reshaping hiring trends.

In this discussion from the Law Offices of Chris M. Ingram immigration news show, we examine several major developments affecting skilled immigrants, including the EB-1A extraordinary ability visa, the H-1B lottery system, and strategies professionals can use to protect their immigration status.

While the system may feel unpredictable, understanding these changes can help applicants navigate it more effectively.

Can H-1B Visa Holders Start a Business?

One of the most common questions from H-1B visa holders is whether they can launch a startup while maintaining their visa status.

The short answer is yes, but with important limitations.

Many people assume the H-1B visa strictly ties a worker to a single employer, preventing any entrepreneurial activity. In reality, the rules focus on employment, not ownership.

An H-1B holder cannot perform operational work for their startup unless authorized by an additional visa or employer. However, they can legally own shares in a company and act as an investor.

The distinction is critical.

Activities that may violate H-1B status include:

• Coding the product

• Managing employees

• Handling sales or customer support

• Running day-to-day operations

However, certain roles are typically acceptable:

• Owning equity in the company

• Participating in high-level strategic decisions

• Voting as a shareholder

• Appointing leadership

In practice, this means entrepreneurs must structure their startup so that they function primarily as investors rather than employees while maintaining their H-1B job.

The EB-1A Visa and the “Final Merits Determination”

The EB-1A visa, often described as the green card for individuals with extraordinary ability, is one of the most attractive immigration pathways for top professionals.

Unlike most employment-based green cards, it does not require:

• An employer sponsor

• Labor certification (PERM)

• A long waiting process to prove that no U.S. worker can fill the role

Instead, applicants must demonstrate that they belong to the small percentage of individuals who have risen to the top of their field.

However, many applicants encounter difficulty because of the two-step evaluation process established by the 2010 Kazarian case.

Step One: Meeting the Criteria

Applicants must satisfy at least three of ten regulatory criteria, such as:

• Receiving nationally or internationally recognized prizes

• Publishing scholarly work

• Making original contributions to a field

• Serving as a judge of others’ work

• Commanding a high salary

This step is largely objective.

Step Two: The Final Merits Determination

Even if an applicant meets three or more criteria, immigration officers then perform a second evaluation known as the final merits determination.

In this step, the officer decides whether the overall evidence demonstrates sustained national or international acclaim.

For many applicants, this step can feel unpredictable because it involves significant subjective judgment.

The Mukherji v. Miller Case

A recent federal court decision may challenge how USCIS applies this final merits test.

In the case of Mukherji v. Miller, the applicant satisfied five out of the ten EB-1A criteria, exceeding the required threshold. Despite this, USCIS denied the petition during the final merits stage.

The applicant challenged the decision in federal court.

The U.S. District Court ruled in her favor, concluding that the way USCIS applied the final merits test violated the Administrative Procedure Act (APA). According to the court, the agency effectively introduced an additional requirement without following proper rule-making procedures.

The judge ordered USCIS to approve the petition.

Although the ruling technically applies only within that court’s jurisdiction, it provides immigration attorneys with a powerful argument when challenging similar denials.

For EB-1A applicants, the takeaway is clear: strong documentation and contextualized evidence remain essential, but legal precedent may increasingly limit arbitrary denials.

A New Weighted H-1B Lottery System

Another major development affecting skilled workers is the introduction of a weighted H-1B lottery system.

Previously, the H-1B selection process was largely random. Under the new rule, the lottery will prioritize registrations based on the wage level associated with the job offer.

The system uses the Department of Labor’s Occupational Employment and Wage Statistics (OEWS) wage levels:

• Level 1 – Entry-level roles

• Level 2 – Qualified professionals

• Level 3 – Experienced workers

• Level 4 – Highly experienced professionals

Under the new model, higher wage levels receive better statistical chances of selection.

This change may benefit highly paid positions at established companies, while creating challenges for startups or organizations that offer lower base salaries but significant equity.

For applicants, it is now more important than ever to ensure that job classifications and wage levels are accurately structured before entering the lottery.

Navigating a Changing Economy

These immigration changes are happening alongside a shifting job market.

In early 2026, major technology companies announced significant layoffs. At the same time, demand for specialized STEM talent remains strong.

Many companies are restructuring internally, cutting administrative roles while increasing investment in areas like:

• Artificial intelligence infrastructure

• Machine learning deployment

• Data governance

• Cybersecurity

For foreign professionals, this shift creates both risk and opportunity.

Workers on visas must also remember that layoffs trigger strict timelines. For example, H-1B holders typically have a 60-day grace period to find a new employer or change status.

Because of these risks, immigration professionals increasingly emphasize the concept of “paperwork resilience.”

This means keeping important documentation organized and accessible, including:

• Approval notices

• Pay records

• Visa documentation

• Employment verification records

If a job loss occurs, having these materials immediately available can significantly speed up the process of securing a new sponsor.

Turning Immigration Uncertainty Into Strategy

Although the immigration system can feel unpredictable, professionals still have meaningful ways to protect their future.

Successful applicants often focus on three key strategies:

1. Structure business ventures carefully to maintain visa compliance.

2. Build strong evidence portfolios for visas such as EB-1A or O-1.

3. Prepare alternative immigration pathways rather than relying on a single option.

With preparation and the right guidance, applicants can turn uncertainty into a manageable process.

The key is understanding the rules and building a strategy around them.