Prepare Your EB-1 Before 2026 USCIS Rule Changes

Prepare Your EB-1 Before 2026 USCIS Rule Changes

The United States Citizenship and Immigration Services (USCIS), under the Department of Homeland Security (DHS), is preparing to release a major Notice of Proposed Rulemaking (NPRM) titled “Petition for Immigrant Worker Reforms” (RIN 1615-AC85) in January 2026.

This proposed rule represents the most significant regulatory update in years affecting EB-1, EB-2 (including National Interest Waiver – NIW), and EB-3 employment-based green card categories. For many applicants, especially Indian STEM professionals on H-1B visas, the message is clear: the window to act under current standards is closing.

What Is RIN 1615-AC85 and Why It Matters

RIN 1615-AC85 refers to USCIS’s forthcoming NPRM aimed at modernizing how immigrant worker petitions are evaluated. According to the federal regulatory agenda, the proposal seeks to:

• Convert internal USCIS guidance into binding regulations
• Standardize adjudications across service centers
• Strengthen fraud detection and credential verification
• Modernize evidence standards for emerging fields

USCIS Employment-Based Immigration Overview

Modernizing Evidence for STEM and Innovation

One stated goal of the NPRM is to update evidence standards for modern STEM disciplines, including:

• Artificial intelligence
• Biotechnology
• Engineering
• Startup and innovation-driven fields

The proposed rule seeks to clarify how existing forms of evidence are evaluated in modern STEM and innovation-driven fields. In practice, USCIS already considers materials such as patents, commercialization outcomes, startup impact, and documented societal or economic contributions when analyzing regulatory criteria like original contributions of major significance or national importance. The NPRM may formalize how such evidence is weighed, rather than introduce entirely new evidentiary categories.

At the same time, codifying standards may raise the bar for marginal cases by reducing officer discretion and informal flexibility.

The Legal Backbone – Kazarian and the Two-Step Test

Immigration Attorney Chris M. Ingram explains that this rulemaking builds on decades of precedent:

“A milestone was the Ninth Circuit’s March 4, 2010 ruling in Kazarian v. USCIS, which established a two-step review: first counting evidence, then conducting a final merits determination.”

This framework later shaped the USCIS Policy Manual, which officers are required to follow today.

The upcoming NPRM may further formalize this structure, potentially narrowing how officers interpret “extraordinary ability” and “national interest.”

Why Indian H-1B Holders Face a Burning Platform

For Indian STEM professionals, the timing of this rulemaking is critical.

EB-2 and EB-3 Backlogs for India

As of the November 2025 Visa Bulletin:

• EB-2 India Final Action Date: April 1, 2013
• EB-3 India Final Action Date: August 22, 2013
• EB-3 Dates for Filing: August 15, 2014

Post-2013 priority dates face 12+ year waits, ongoing H-1B extensions, and risks such as CSPA child aging out.

EB-1A as a Strategic Escape Hatch

By contrast:

• EB-1 India Final Action Date: February 15, 2022
• EB-1 Dates for Filing: April 15, 2023

For applicants with EB-2 priority dates before 2021–2022, upgrading to EB-1A and porting the priority date can unlock immediate or near-immediate adjustment of status.

Speculated Changes Under the 2026 NPRM

While the full text is not yet public, experts anticipate:

Tougher EB-1A Standards

• Possible expectation of five of the ten criteria instead of three
• Increased scrutiny of borderline or “emerging field” cases
• Higher denial rates for marginal evidence profiles

EB-2 NIW Formalization

• Codification of the Dhanasar framework
• Greater emphasis on economic and national security impact
• Reduced flexibility for novel or early-stage innovations

USCIS has indicated that pending cases would not be retroactively affected, but the direction signals stricter adjudications going forward.

Appeals, Fraud Claims, and Systemic Pressure

Chris M. Ingram notes:

“Not every case wins initially. We’ve succeeded on appeal before the Administrative Appeals Office, clarifying standards and setting precedent.”

Economist David J. Bier challenges exaggerated fraud narratives, noting that high-profile allegations resulted in only two charges, despite claims of “hundreds.”

Stuart Anderson of the National Foundation for American Policy continues to warn that backlogs are pushing talent toward Canada and other competitors.

Timeline – What Happens Next

• Fall 2024 – Spring 2025: Rule drafting and internal review
• January 2026: NPRM release (RIN 1615-AC85)
• 60-day public comment period
• Mid- to late-2026: Potential implementation

For applicants, this means filings submitted now are adjudicated under current standards.

USCIS Visa Bulletin

Strategic Recommendations – Act Before the Window Closes

EB-1A Upgrade Strategy

• File under current evidentiary standards
• Port EB-2 priority dates when eligible
• Use premium processing where appropriate
• File concurrently when possible

When NIW Still Makes Sense

• No approved I-140 yet
• Need job portability
• Long-term strategy without line-jumping expectations

Conclusion – Why Preparation Matters Now

The “Petition for Immigrant Worker Reforms” (RIN 1615-AC85) signals a turning point. While it does not eliminate per-country caps, it is likely to tighten EB-1A and NIW adjudications.

With EB-2 India stuck in 2013 and EB-1 in 2022, proactive applicants – especially those waiting 3–4+ years – have a rare opportunity to secure permanent residence before standards harden.

Track updates on USCIS.gov and Reginfo.gov, participate in the comment process, and prepare strategically. Your expertise fuels U.S. innovation – now is the time to protect your future.