If you have recently filed an EB-1A extraordinary ability petition or an EB-2 National Interest Waiver (NIW), there is a meaningful chance you will see a Request for Evidence (RFE) before you see an approval. Across both categories, RFE rates have climbed sharply over the past several years, and the fourth quarter of 2025 marked the first time on record that NIW denials outpaced approvals. For employers investing in foreign talent and for the self-petitioning professionals who carry these cases themselves, the trend is more than a statistic; it is a recurring pattern in which the agency misreads, misconstrues, and misapplies the very regulations it is charged with enforcing.

The encouraging news is that the federal courts have begun to take notice. But to understand where the law is heading, employers and employees alike need to understand what the agency is actually doing in these RFEs and why so much of it has no basis in the regulations.

EB-1A: Manufacturing Requirements That Do Not Exist

The EB-1A regulations at 8 CFR 204.5(h)(3) set out ten criteria, of which a petitioner must satisfy at least three. The text is not ambiguous. Yet across nearly every criterion, USCIS has taken to inventing requirements that appear nowhere in the regulations or policy manual.

Consider recommendation and reference letters. Under EB-1A, these letters speak to a petitioner’s standing and acclaim in the field. Increasingly, however, adjudicators evaluate them as though they were the experience-verification letters used in EB-2 or EB-3 cases demanding employment dates, job duties, and supervisory confirmation, as if the question were length of service rather than national or international recognition. That is the wrong test applied to the wrong category. Competence is in short supply at USCIS.

The pattern repeats with scholarly articles. Authorship of scholarly work is its own criterion; it asks whether the petitioner has authored such material in professional or major trade publications. Adjudicators nonetheless frequently demand that the authorship also demonstrate some far-reaching impact on the field such as citation counts, downstream influence, and the like. That is a different inquiry belonging to a different criterion, and conflating the two improperly raises the bar that Congress and the regulations actually set.

Perhaps the clearest example is the agency’s treatment of wage data. When a petitioner offers high-remuneration evidence, adjudicators have taken to dismissing Level IV prevailing wage data on the theory that it does not necessarily reflect advanced or senior leadership compensation. Level IV is, by definition, the highest wage tier. Treating the top of the scale as insufficient evidence of high remuneration is not a serious reading of the criterion. Unserious adjudications by a serially unserious administration.

EB-2 NIW: Rewriting Dhanasar One RFE at a Time

The National Interest Waiver is governed by the three-prong framework of Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016): the proposed endeavor must have substantial merit and national importance; the petitioner must be well positioned to advance it; and, on balance, it must benefit the United States to waive the job offer and labor certification requirement. USCIS’s own January 2025 guidance update left that framework intact. The problem is not the standard. The problem is that the agency has, in practice, stopped reading petitions against it.

Two trends stand out. First, adjudicators routinely demand detailed business plans from petitioners who never advanced an entrepreneurial case at all; researchers, engineers, and clinicians whose endeavors have nothing to do with launching a venture. A business plan is not a Dhanasar requirement; it is, at most, useful evidence in the narrow subset of cases where the endeavor is itself a business. Second, and more corrosively, officers have quietly rewritten the first prong. National importance which Dhanasar grounds in the broad potential impact of an endeavor, including work within nationally important industries, is increasingly recast as a demand that the petitioner be at the tip of the spear of some field-altering technology or methodology. That is not the test. It is a fabricated, heightened standard that neither the regulations nor the precedent contains.

The data tracks the experience. RFE rates for NIW petitions reached roughly half of regularly processed cases in early 2026, and denials have, for the first time, overtaken approvals and even surpassed EB-1A denial rates. The standard has not changed. The application of it has. Fealty to the law is not an operating interest of the current administration.

Premium Processing: A Fast Way to Buy an Amateurish RFE

Premium processing promises a fifteen-to-forty-five- day decision, and for many petitioners it delivers—an RFE, issued in a rush on or near the final day so the agency can retain the fee without having to refund it. The speed comes at the cost of care. Time and again these last-minute RFEs misconstrue or simply ignore the bulk of the documentation already in the record.

A recent RFE we received illustrates the problem better than any argument could. In one paragraph, USCIS described the petitioner’s proposed endeavor and acknowledged its substantial merit and national importance. Two paragraphs later, the same RFE asserted that the petitioner had submitted no statements or documentation addressing the proposed endeavor’s substantial merit and national importance. The agency contradicted itself within a single document having read enough of the record to summarize the endeavor, then claiming that nothing about it had been submitted at all.

The Courts Are Beginning to Push Back

For years this conduct went largely unchecked. That is changing. In Mukherji v. Miller, decided in the District of Nebraska in January 2026, a federal court vacated an EB-1A denial and ordered USCIS to approve the petition outright. The petitioner had satisfied five of the ten criteria, well past the required three, yet the agency denied her at the “final merits determination” stage, the subjective second step of the Kazarian framework. The court held that USCIS had adopted that second step through internal policy memoranda without the notice-and-comment rulemaking the Administrative Procedure Act requires, and, drawing on the Supreme Court’s decision in Loper Bright, that the agency may not impose adjudicatory standards untethered from the statute and regulations. The court further rejected the “recency” requirement USCIS had invented, noting that it has no basis in a statute written in the past tense of sustained acclaim.

USCIS appealed to the Eighth Circuit in April—and then, within the past several weeks, withdrew that appeal. The likeliest explanation is institutional caution: by retreating, the agency preserved its ability to keep applying the final merits determination elsewhere while avoiding an appellate ruling that could have bound it across the circuit. The practical takeaway is therefore measured rather than triumphant. Mukherji is a district court decision; it binds only the parties before it, not adjudications nationwide. But it now stands undisturbed as strong persuasive authority and a roadmap for RFE responses, Notices of Intent to Deny, appeals to the Administrative Appeals Office, and federal litigation wherever USCIS leans on an extra-regulatory standard.

The NIW side has not yet seen its Mukherji. The same logic, i.e. that USCIS cannot manufacture requirements absent from the statute and from Dhanasar, is being pressed, but no controlling decision has yet brought the agency to heel under the national interest framework. For now, the misuse of Kazarian’s second step is under sustained and successful attack in the EB-1A context; in NIW, the attack is building without a concrete result.

What This Means for Employers and Employees

The lesson is not that these categories have become impossible. It is that the margin for error has narrowed, and that the burden of the agency’s misreadings falls on the petitioners who must anticipate them. The answer is to build a strong, plenary record from the outset—one that maps each piece of evidence to the correct criterion or Dhanasar prong, forecloses the manufactured requirements before they are raised, and leaves even a rushed or inattentive adjudicator no room to claim the record is silent. Where USCIS oversteps anyway, the developing case law gives petitioners more to work with than they have had in years. As the courts continue to rein in unlawful adjudication, the most reliable protection remains the same: a meticulously documented petition that is impossible to misread in good faith—and difficult to misread even in bad faith.

For more information, or for a detailed conversation regarding RFEs in your EB-1A or EB-2 NIW matter or other issues arising during your permanent residency process, please schedule a time to speak here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

We are committed to assisting our clients with navigating or avoiding the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.