EB1A Experts, an immigration consultancy that helps top tech professionals in their petitions across EB1A, EB2-NIW and O1A pathways, came up with something interesting. Based on their 2026 caseload, EB1A Experts have come up with the 2026 State of Extraordinary Ability Immigration Report w.r.t the current USCIS Policy Manual, recent AAO decisions, and the Visa Bulletins so far. The organization has hit 300 approvals recently; this report talks about a lot of things.
Through the entire last decade, the immigration attorneys have treated ‘The Extraordinary Ability’ green card as a fallback. It is only considered when the employers are not sponsoring as a backup. However, the pattern has been changing rapidly, and the reason behind that is that EB1A, even with tighter scrutiny, is actually identifying people with extraordinary abilities across the industries.
Why is the shift happening now?
An interesting question, but a lot of external reasons. EB-2 India has hit the maximum limit for the year and is not available for 2026. What does it mean? The USCIS or the consulates can’t issue any more EB-2 immigrant visas to the Indian born applicants until the reset that happens on October 1. Not only that, but the PERM-based sponsorship has also gotten riskier since the pending labor certification is almost the same as the sponsoring employer’s stability. The tech sector layoffs have been happening aggressively over the last two years, which has become a live concern now. Therefore, the professionals, especially the ones in AI, Cloud Engineering, Data Science, or even semiconductors, are looking at other green card categories instead of depending on a single employer.
What do the firm’s own numbers show?
Again, basing it just on the internal numbers and not the industry-wide sample, the firm spoke about metrics regarding the EB1A and O1A petitions. It attributed this to an 80-85% approval rate with a specific 18% year-over-year increase, especially in EB1A cases. It stated that responding to the RFEs within 15 days ultimately helped them succeed with the cases. On top of that, it also suggests that at least three out of 10 prospective clients are not switching from EB2-NIW to EB1A. That being said, the government’s actual commitment and approval rates are different. The approval rate of EB1A has fallen in the first quarter of 2026; however, USCIS is promising to premium process the I-140 in 15 business days for an initial action and not a guaranteed approval. If the RFE is issued, the clock is paused till they get a response.
Where do petitions actually succeed or fail?
Officers are actually applying the 10 criteria listed in 8 C.F.R. Section 204.5(h)(3) and, on top of that, are not literally subjecting cases to final merits determination. Evidence of a critical role and original contributions is held up if they are not corroborated by the petitioner himself/herself. A high salary, on the other hand, carries a case without having comparator data; therefore, it is becoming slightly unusual when it comes to the weightage. The RFE issues are mostly familiar: we have evidence that’s submitted without any explanation, or we have contributions that are real but can’t show any sustained acclaim in recent times. By building cases on these criteria without addressing the final merits, people are failing to secure the approvals.
In January 2026, a federal court in Nebraska, in Mukherji v. Miller, found that the USCIS has a two-step Kazarian framework through which they’re evaluating the cases. This framework is not in sync with the formal rulemaking and therefore violates the Administrative Procedure Act. However, the USCIS did not change the policy in response, and the ruling isn’t binding unless the government appeals to the Eighth Circuit. There is a possibility of decline by approving the underlying cases. For now, the two-step review is the standard form for checking the petitions, but yes, the attorneys are watching them closely.
The July Visa Bulletin adds a deadline, not just a standard
The July 2026 Visa Bulletin created a panic among Indians, especially. EB-2 India became unavailable. EB-1 India’s final date moved to October 15, 2022. EB-1 China, however, has advanced to June 1, 2023. For Indian born applicants, the math has changed; filing EB1A now has become very important.
A separate H-1B ruling is adding to the pressure
To add intensity to the situation, the employer sponsorship side is also rippled. On June 8, 2026, a Massachusetts federal judge ruled out saying that the $100,000 H-1B supplemental fee might not be valid. This was introduced by Trump as part of the presidential proclamation back in September 2025. He said that it’s unlawful. However, four days later, the same judge issued an administrative stay putting the fee back into the appeal to the First Circuit. So, in layman’s terms, employers are still paying this fee. The back-and-forth discussion made the employee-based categories look unstable, which is why people should opt for self-petitioned categories amidst the turf now.
Where do applicants tend to go wrong?
The firm then spoke about repetitive mistakes that happen in most applicants’ petitions. The primary mistake that they have seen is relying on the documents rather than working on a narrative development from scratch. Any evidence that’s submitted without a flow is treated as incomplete. The USCIS does not care if you are meeting three criteria if there is no continuity between them. The second mistake is to assume that the evidence that worked in one successful filing will carry the same weight for the other. With the adjudication processes changed, that’s not possible.
What FY2027 might bring?
USCIS had flagged a rule, RIN 1615-AC85, aimed at revising EB-1, EB-2, and EB-3 adjudication standards. It’s unclear whether there will be a proposal, but tighter scrutiny standards will soon be released. The EB-2 India quota gets reset in October 2026, and that will free new numbers for the new year, but it still won’t resolve the backlog behind it. So, whoever is applying for EB1A, should start their journey right away and work on their case documentation, especially with technologies and tools growing at a rapid speed.
At present, all eyes are on the EB1A petitions. The time for your preparation starts now.
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