EB-2 NIW in 2026: The Real Denial-Rate Story — and How to Build a Petition That Still Wins
For six straight fiscal years — FY2018 through FY2023 — the EB-2 National Interest Waiver was one of the most reliable categories in employment-based immigration, with approval rates consistently above 90%. That era is over. Since FY2024, NIW adjudication has tightened dramatically, and the shift has been fast enough that many petitioners and even some practitioners describe today’s environment in the starkest possible terms — “80% denial” being the number most often repeated in online forums and consultations.
The real numbers are bad enough without exaggeration. Here’s what USCIS’s own quarterly data actually shows, and — more importantly — what a petition needs to look like to succeed in this environment.
What the Data Actually Shows:
- FY2024: Approval rates fell sharply from the 90%+ era to roughly the mid-40s to low-50s percent range, depending on the quarter — the first real crack in a category that had felt almost automatic for years.
- FY2025: A genuinely volatile year. Approvals opened around 63% in Q1, climbed to roughly 67% in Q2, slid to about 54% in Q3, then collapsed to roughly 36% in Q4 — the first quarter on record where NIW denials outnumbered approvals. Full-year approval landed around 55%.
- FY2026 (through Q2, covering January–March 2026): Approval rates have been recovering for two consecutive quarters — from roughly 43% in Q1 to about 48% in Q2 — but remain far below the historical norm.
- Filing volume has nearly tripled since FY2022, and processing times have stretched toward two years for standard adjudication, with premium processing (45 business days) increasingly used as a way to get a faster answer rather than a faster approval.
- Quantification is now mandatory, not optional. Broad statements that a field is “important” or a petitioner’s work is “significant” no longer carry weight on their own. Officers expect measurable outcomes — revenue generated, cost savings, patients treated, students served, citations and impact factors, adopted policy or technical standards, named clients or users.
- Volume has changed adjudication behavior. With NIW filings up sharply since FY2022, officers appear more willing to deny a marginal case outright rather than spend the time on an RFE. That makes the initial filing far less forgiving than it used to be.
- “National importance” is increasingly read through the lens of identified federal priorities — areas like semiconductor manufacturing, artificial intelligence, cybersecurity, energy and critical infrastructure, and healthcare workforce shortages tend to draw a more receptive read when the connection is made explicitly and specifically, rather than left for the officer to infer.
What’s Actually Failing in Denied Petitions:
The recurring weaknesses in denied and RFE’d cases are consistent across the data and case-tracking reports:
- Recommendation letters that praise the petitioner generically without walking through the Dhanasar prongs or citing specific, checkable outcomes
- National-importance arguments that describe a field (“AI is important,” “healthcare is important”) rather than the petitioner’s own measurable contribution to it
- “Well positioned” evidence that leans on degrees and titles instead of a documented track record of actually executing similar work successfully
- Entrepreneur/business-based petitions supported by aspirational plans and market research rather than revenue figures, headcount, signed contracts, or named customers
Building a Petition That Survives 2026 Scrutiny:
- Prong 1 — Substantial merit and national importance. Replace qualitative claims with numbers wherever possible: dollars, patients, users, citations, patents, cost or efficiency improvements. Where the endeavor connects to a recognized federal priority area, say so explicitly and back it with something concrete — a grant, a government contract, a published agency priority, industry data on a documented shortage — rather than leaving the connection implied.
- Prong 2 — Well positioned to advance the endeavor. This is where objective, independent evidence matters most in 2026. Recommendation letters should come from people who can speak to specific, verifiable results — not only past supervisors or close collaborators, but arms-length experts, clients, or industry figures who can point to concrete outcomes. A forward plan should read as an execution plan with milestones, not an aspiration.
- Prong 3 — Balance favors waiving the job offer. Tie the case for urgency and scale directly to why the standard labor certification process would be an inefficient or inappropriate way to bring this particular impact to the United States.
- File now rather than waiting. With visa number pressure building across employment-based categories, locking in a priority date has value independent of the current approval-rate cycle.
- Assume RFE-level scrutiny from day one. Build the initial filing as though it already needs to survive a request for evidence — the data suggests officers are less inclined to ask before denying.
- Use premium processing deliberately. It buys a 45-business-day answer instead of up to two years, which is valuable for a strong case but should be weighed carefully for a borderline one, since a fast denial is still a denial.
- Compare against EB-1A where relevant. The two categories’ relative approval rates have shifted back and forth quarter to quarter; a petitioner with an unusually strong record may fit either standard, and it’s worth evaluating both before choosing a path.
- If an RFE arrives, respond to the specific prong in question with new, independent evidence — not a restated version of the original argument.
The NIW category is harder than it has been in years, and the data supports real caution — but not the near-hopelessness that “80% denial” implies. The gap between the aggregate denial rate and the much higher failure rate of thin, generic, or self-prepared petitions is exactly where a carefully built case still succeeds. In an environment where officers are quick to deny rather than ask questions, the margin for a weak petition has essentially disappeared — but the margin for a well-documented one has not.
DHS Proposal to Eliminate 60-Day Grace Period for H-1B and Other Workers Clears Federal Review
A major immigration proposal that could dramatically change what happens when an H-1B or certain other nonimmigrant workers lose their jobs has cleared federal regulatory review.
The Office of Management and Budget (OMB) has completed its review of a proposed Department of Homeland Security (DHS) regulation that, if finalized, would eliminate the discretionary maximum 60-day grace period currently available to certain employment-based nonimmigrants and their dependents when employment ends before the expiration of their authorized stay.
The proposal could have particularly significant consequences for H-1B workers affected by layoffs or termination, because the 60-day grace period currently provides many workers with critical time to locate a new employer, file a change of employer petition, seek another immigration status, or prepare to depart the United States.
Importantly, the 60-day grace period has not been eliminated at this time. The proposal must still go through the federal rulemaking process.
What Is the Current 60-Day Grace Period?
Under current DHS regulations, certain nonimmigrant workers may receive a discretionary grace period of up to 60 consecutive days following the cessation of employment, or until the end of their authorized validity period, whichever is shorter.
The provision generally applies to individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN classifications, along with their qualifying dependents.
For H-1B workers in particular, the provision has become an important safety net during layoffs.
For example, an H-1B professional whose employment ends unexpectedly may currently have up to 60 days to secure another qualifying employer and potentially have that employer file an H-1B change-of-employer petition.
What Is DHS Proposing?
According to the regulatory information currently available, DHS is proposing to eliminate the discretionary maximum 60-day grace period when the principal nonimmigrant’s employment terminates before the expiration of the individual’s authorized stay.
If that proposal ultimately becomes a final rule without meaningful transition protections, the consequences could be substantial.
A foreign national whose employment ends could potentially cease maintaining nonimmigrant status immediately rather than having the protection of the current grace-period framework.
Dependents could also be affected because their status generally derives from the principal nonimmigrant’s status.
Major Consequences for H-1B Workers:
The proposed change could fundamentally alter the strategy for H-1B workers facing layoffs.
Under the existing system, an employee who is terminated generally has some breathing room to search for another employer and arrange an H-1B transfer. Eliminating that period could turn termination into an immediate immigration-status problem.
This could be particularly difficult in industries experiencing large-scale layoffs, where finding a new position, completing employer onboarding, preparing an LCA, obtaining LCA certification and filing an H-1B petition can take time.
Workers might therefore have far less flexibility to remain in the United States while seeking new employment.
Would an H-1B Worker Have to Leave Immediately?
This is one of the most important questions, and the precise answer will depend on the language of the proposed and ultimately any final rule.
Based on the information presently available, elimination of the regulatory grace period could mean that a worker whose qualifying employment ends would no longer be able to rely upon an automatic regulatory window of up to 60 days to maintain status.
USCIS does possess separate discretionary authority in certain circumstances concerning failures to maintain status and late filings. However, workers should not assume that such discretionary relief would be automatic or equivalent to the existing 60-day grace period.
The exact mechanics will become much clearer once DHS publishes the proposed regulatory text.
What Happens Next?
Completion of OMB review does not make the proposal effective.
The next major step is expected to be publication of the proposed rule in the Federal Register. The proposed regulatory text should provide considerably more detail about DHS’s intended changes.
The public would then generally be given an opportunity to submit comments, commonly for approximately 30 or 60 days.
DHS would review the comments before deciding whether and how to proceed with a final rule. A final rule would normally identify an effective date.
Until that process results in an effective regulatory change, the existing 60-day grace-period regulation remains relevant.
H-1B Workers Should Plan More Carefully:
Although there is no reason for H-1B workers to panic, this development deserves close attention.
If DHS ultimately eliminates the grace period, workers may need to become significantly more proactive when they anticipate layoffs, reductions in force, project termination or other employment changes.
Where possible, an H-1B employee considering a job change may want to begin the transfer process before leaving the existing employer, rather than relying upon the 60-day period afterward.
Employers considering termination of foreign workers should likewise understand that the immigration consequences could become considerably more immediate if the proposal is finalized.
Current H-1B 60-Day Grace Period Has Not Disappeared:
The most important point for foreign workers today is that OMB clearance of a proposed rule is not the same thing as a final rule.
H-1B and other affected nonimmigrant workers should not assume that they have suddenly lost their existing 60-day grace-period protection.
However, the completion of OMB review moves the proposal one step closer to public rulemaking and makes publication of the actual proposal the next critical event to watch.
Once DHS publishes the proposed rule, its exact language will need to be carefully reviewed to determine which visa categories are affected, whether any exceptions or transition protections are contemplated, how dependents will be treated, and what DHS proposes for workers whose employment terminates around the effective date.
Federal Court Orders USCIS to Resume Processing Certain FY 2026 Diversity Visa Cases
A federal court has temporarily blocked a USCIS policy that had placed certain Diversity Visa (DV) adjustment of status cases on hold, ordering the agency to take reasonable steps to resume ordinary adjudication of affected FY 2026 Diversity Visa applications.
On August 28, 2026, the U.S. District Court for the Northern District of California issued an order in Medani, et al. v. Trump, et al., temporarily vacating USCIS Policy Memorandum PM-602-0193 while litigation over the policy continues.
The ruling is particularly significant because the FY 2026 Diversity Visa program is approaching the end of its fiscal-year deadline on September 30, 2026. For Diversity Visa applicants, the calendar is not merely procedural—it can function like a closing gate, because DV eligibility generally cannot simply be carried over into the next fiscal year.
What Did the Court Order?
According to USCIS, the court directed the agency, “to the extent practicable and in good faith,” to take all reasonable steps during the remainder of the Diversity Visa fiscal year to resume ordinary adjudication of the plaintiffs’ pending adjustment of status applications without applying PM-602-0193.
The court also partially granted the plaintiffs’ request for class certification.
For purposes of cases handled by USCIS, the certified subclass includes all selectees and derivative beneficiaries under the FY 2026 Diversity Visa Program who are subject to the USCIS DV Hold imposed by Policy Memorandum PM-602-0193.
This means the ruling potentially reaches beyond the individual plaintiffs and may affect a broader group of FY 2026 Diversity Visa selectees and their qualifying derivative beneficiaries whose adjustment applications were placed on hold under the policy.
Why Had USCIS Placed the Cases on Hold?
USCIS stated that PM-602-0193 was issued as part of an effort to ensure that individuals seeking adjustment of status through the Diversity Visa Program do not pose national security or public safety threats.
The federal court’s order temporarily vacates the policy while the underlying litigation continues.
USCIS has publicly stated that it strongly disagrees with the court’s decision, but the agency confirmed that it will comply with the order while considering possible further judicial review.
What This Means for FY 2026 Diversity Visa Applicants:
The decision could be extremely important for DV-2026 selectees who have adjustment of status applications pending with USCIS and whose cases were affected by the hold.
Affected applicants should pay particularly close attention to their cases during September. With the fiscal year rapidly approaching its end, USCIS may have only a limited window in which to schedule interviews, complete security and background checks, request any necessary evidence, and adjudicate eligible applications.
Applicants should therefore:
- Closely monitor their USCIS online accounts and physical mail for interview notices, Requests for Evidence, or other communications;
- Make sure USCIS has their current address and contact information;
- Respond immediately to any USCIS request;
- Keep passports, civil documents, medical examination documentation, and other adjustment materials readily available;
- Consult immigration counsel promptly if a case remains stalled despite being affected by the DV hold; and
- Avoid assuming that the court order itself constitutes approval of an adjustment application.
September 30 Deadline Makes the Ruling Especially Important:
The timing of the decision may prove just as important as its substance.
The Diversity Visa program operates within strict annual numerical and fiscal-year limitations. For FY 2026 cases, the remaining weeks before September 30 could therefore become a race against the clock for applicants whose cases were delayed by the USCIS hold.
The court’s intervention has reopened a pathway that had effectively been narrowed by the agency’s policy, but applicants still face the practical challenge of obtaining adjudication before the Diversity Visa fiscal year closes.
USCIS May Seek Further Review:
The litigation is not over. USCIS has expressly stated that it disagrees with the ruling and indicated that further judicial review remains possible.
Accordingly, affected applicants and their attorneys should continue monitoring the case and USCIS implementation closely. Further court orders, appellate proceedings, or agency guidance could change how the ruling is implemented.
For now, however, USCIS has confirmed that it will comply with the federal court’s order, providing an important opportunity for affected FY 2026 Diversity Visa applicants to have their pending adjustment applications move forward.
Sincerely,
Keshab Raj Seadie, Esq. Law Offices of Keshab Raj Seadie, P.C.
Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
