Beyond Three of Ten: Winning the Final Merits Determination in EB-1A Cases
For years, the working formula for an EB-1A petition was simple: document three of the ten regulatory criteria under 8 CFR 204.5(h)(3), file, and wait. That formula no longer works. Denial rates have climbed past 50% in many practitioners’ experience, and the common thread in the denials is not a missed criterion. It is a lost final merits determination.The two-step framework:
Since Kazarian v. USCIS and its adoption into the USCIS Policy Manual, adjudicators apply a two-part test:
- Counting. Does the evidence satisfy at least three criteria?
- Final merits. Viewing all the evidence together, does the petitioner show sustained national or international acclaim and place among the small percentage at the very top of the field?
Step one is a threshold. Step two is where cases are won and lost. Many petitions are built entirely around step one, and officers now routinely say, “Criteria met, but the totality does not establish extraordinary ability.”
Why petitions fail at step two:
Evidence that technically qualifies but proves nothing about rank. Judging a few papers for an obscure journal, membership in a body with low standards, or a press mention that is mostly about the employer will check the box without showing the petitioner is at the top.
No context. Officers cannot assess “high salary” or “original contributions” without a benchmark. A number or a patent without comparison data is just a number.
No field definition. If the petitioner never defines the field and the relevant population, the officer defines it for them, usually narrowly and unfavorably.
Duplicated evidence. The same achievement presented under three criteria reads as one achievement, and officers discount it accordingly.
Weak independent corroboration. A file made up mostly of letters from colleagues, mentors, and co-authors looks like advocacy rather than proof of acclaim.
Impact claimed rather than shown. “Industry-changing” is an assertion. Adoption, licensing, revenue, citations by independent parties, and downstream use are proof.
What to do better:
- Design the petition around the final merits, not the criteria. Start by asking what the three strongest facts are that show this person is in the top few percent. Build the narrative around them and use the criteria as the evidentiary structure, not the story.
- Define the field and the comparison group early. State the field, the metrics that matter in it, and where the petitioner sits relative to peers. Use data such as percentile rankings, wage surveys, citation benchmarks, and market-share or adoption figures.
- Prove significance, not participation. For each criterion, answer four questions: what was it, how selective or significant is it, who says so independently, and how does it compare to peers.
- Lead with independent evidence. Prioritize third-party documents: publications that cite the work, press coverage focused on the person, award criteria and selection statistics, and evidence of use by others. Recommendation letters should come from independent experts who can speak to impact and who explain how they know the work, with each letter doing a distinct job.
- Show sustained acclaim. The regulation speaks of sustained acclaim, so show a timeline of recognition over years, not a spike in the last twelve months before filing.
- Use the totality section to do real analysis. A strong final merits section is not a repetition of the criteria. It ties together rank, recognition, influence, and trajectory, and it anticipates the officer’s doubts.
- Audit for contradictions before filing. Resume dates, title discrepancies, salary figures, and statements in letters should all match. Inconsistencies are a common reason credible cases are denied.
- Prepare for RFEs from day one. Know the weakest criterion and the officer’s likely objection. Build the response file in parallel so the RFE reply strengthens the case rather than rescuing it.
- Be honest about marginal cases. If the petitioner is a strong EB-2 NIW candidate but not a top-percentile EB-1A candidate, filing anyway wastes time and money. Candor about odds, and sometimes the decision to wait twelve to eighteen months and build the record, is part of good counsel.
Why experience matters:
Final merits adjudication is discretionary and inconsistent. Experienced counsel know how officers read a record, which evidence is discounted in practice, which framings draw an RFE, and which arguments hold up on appeal. A template-driven filing that mechanically checks three boxes is the profile of the cases being denied.
The bottom line:
Meeting three criteria gets a petitioner to the starting line, not the finish. Today’s successful EB-1A petitions are built as a coherent, evidence-backed case that the beneficiary is among the very best in the field, with the proof organized so an officer can reach that conclusion without having to infer it.
BREAKING IMMIGRATION NEWS: DHS Moves to End Deference or H-1B Extensions as U.S. Immigration Scrutiny Intensifies
The Trump Administration is moving toward a much tougher adjudication system for H-1B and other employment-based nonimmigrant petitions. A new Department of Homeland Security proposal would eliminate the regulatory requirement that USCIS give deference to its own prior approvals when adjudicating subsequent Form I-129 petitions involving the same employer, employee, and underlying facts.
1. H-1B EXTENSIONS COULD EFFECTIVELY BECOME FRESH ADJUDICATIONS:
Under the existing regulation, USCIS generally gives deference to an earlier eligibility determination when the same parties and underlying facts remain unchanged, unless there was a material error, material change in circumstances or eligibility requirements, or new adverse material information.
DHS is now proposing to eliminate that deference requirement.
If finalized, an H-1B worker who has been approved for the same employer and substantially the same position multiple times should no longer assume that the prior approvals will carry significant weight.
USCIS could independently reexamine issues such as:
- Whether the position qualifies as a specialty occupation
- Whether the beneficiary’s education qualifies for the position
- Whether the degree is sufficiently related to the job
- Employer-employee relationship and right to control
- Worksite and third-party placement evidence
- Availability of specialty-occupation work
- LCA and petition consistency
- Wage and occupational classification
- Maintenance of status
- Prior petition representations and supporting documentation
DHS itself reportedly estimates that eliminating deference could generate approximately 6,000 additional Requests for Evidence each year.
2. IMPORTANT: THIS IS A PROPOSAL — NOT YET THE LAW:
Employers and H-1B workers should not misunderstand today’s announcement.
The deference change is proposed. The existing regulation currently states that USCIS gives deference to prior determinations involving the same parties and underlying facts, subject to specified exceptions.
Therefore, it is premature to say that every H-1B extension filed today is already being legally treated as a completely new case under a finalized no-deference regulation.
But the direction of immigration policy is unmistakable: employers should begin preparing extension petitions as though USCIS may scrutinize the entire case again.
3. 60-DAY GRACE PERIOD IS ALSO UNDER ATTACK:
In a separate proposed rule, DHS is seeking to eliminate the discretionary up-to-60-day grace period following termination of employment.
The proposal covers workers in:
H-1B, H-1B1, L-1, O-1, TN, E-1, E-2 and E-3 status.
Their dependents could also be affected.
If finalized, this could dramatically change the strategy following a layoff. Foreign workers may need to arrange a new petition, change of status or departure much more quickly instead of relying upon the current grace-period framework.
Again, the 60-day grace-period elimination is presently a proposed rule, not a final rule.
4. AUTOMATIC EAD EXTENSIONS HAVE ALREADY BEEN RESTRICTED:
This part is different because it is already effective.
DHS ended automatic EAD extensions for many renewal applications filed on or after October 30, 2025, subject to limited exceptions. The rule does not retroactively eliminate qualifying automatic extensions obtained before that date and does not eliminate extensions separately authorized by law or certain Federal Register notices.
This can have a particularly serious impact on workers who depend on timely EAD renewals, including qualifying H-4 spouses, because processing delays can translate into employment interruptions.
For H-1B families, the combination is particularly important.
The principal H-1B worker could eventually face tougher extension adjudications and potentially lose the 60-day post-employment grace period if the pending proposals become final, while an H-4 spouse may already face the risk of an employment gap because of the restrictions on automatic EAD extensions.
Employers and families therefore need to plan extensions considerably earlier.
6. THIS IS PART OF A MUCH LARGER IMMIGRATION ENFORCEMENT SHIFT:
These developments should not be viewed in isolation.
The federal government is simultaneously pursuing major changes affecting employment immigration, including heightened scrutiny of employment-based programs and a proposal imposing extraordinarily large new fees on F-1 Optional Practical Training.
DHS has proposed an OPT fee structure of $70,000 for initial OPT and $30,000 for subsequent OPT participation. That proposal is not yet final.
The Department of Labor has also recently taken aggressive action involving PERM processing for a number of major technology and outsourcing companies.
Taken together, these actions signal a broader move toward re-adjudication, repeated vetting, employer scrutiny and significantly less reliance on previously granted immigration benefits.
WHAT SHOULD H-1B EMPLOYERS AND WORKERS DO NOW?
The safest approach is to stop treating an extension as a routine renewal.
Every extension should be prepared to independently establish eligibility from the ground up. Employers should carefully review the prior I-129, petition letter, LCA, job duties, educational requirements, worksite information, organizational evidence and employee credentials and make sure the new filing is internally consistent with the immigration history.
A case that USCIS approved three or six years ago may not necessarily receive the same treatment in the next adjudication if the proposed no-deference rule becomes final.
The message is simple: an approval today should no longer create complacency about tomorrow’s extension. Prepare every petition as if USCIS may examine the entire case again.
DHS Moves to Change Premium Processing Timeframes — Could H-1B and Green Card Applicants Face Longer Waits?
The Department of Homeland Security (DHS) is preparing a proposed regulation that could change the timeframes for USCIS Premium Processing, potentially affecting thousands of employers and foreign nationals who pay substantial additional fees for expedited immigration decisions.
A proposed rule titled “Amending the Premium Processing Timeframe” was submitted for review to the White House Office of Management and Budget (OMB) on October 13, 2026.
The proposal is currently under federal regulatory review, and its text has not yet been released to the public. Therefore, DHS has not yet disclosed exactly which immigration categories would be affected or whether particular processing periods would be lengthened.
What Could Change?
USCIS currently provides premium processing under different statutory and regulatory timeframes—generally 15, 30, or 45 business days, depending on the immigration benefit requested.
Premium processing is available for various classifications involving Form I-129, Form I-140, certain Form I-539 applications, and certain Form I-765 applications.
For example, many H-1B, L-1, O-1 and other eligible I-129 petitions currently receive premium processing under the applicable 15-business-day timeframe.
Because the proposed regulation remains confidential while undergoing OMB review, no one should presently claim that DHS has officially increased these processing periods.
However, the title of the proposed regulation indicates that DHS intends to amend the existing premium-processing timeframe framework, and one possibility being closely watched is whether USCIS could seek longer adjudication periods for some categories.
Why This Matters:
Premium processing has become increasingly important for employers and foreign nationals who need predictable adjudication timelines for:
Premium processing has become increasingly important for employers and foreign nationals who need predictable adjudication timelines for:
- H-1B extensions, transfers and amendments
- L-1 petitions
- O-1 petitions
- Employment-based I-140 petitions
- EB-1 multinational manager petitions
- EB-2 National Interest Waiver cases
- Certain F-1 OPT/STEM OPT applications
- Certain changes or extensions of nonimmigrant status
The development is particularly significant because premium processing has already become considerably more expensive.
Effective March 1, 2026, the premium processing fee for many I-129 and I-140 cases increased to $2,965. DHS explained that the increase reflected the statutory inflation adjustment.
Now, only months after that fee increase, DHS is considering changing the timeframes associated with the service.
Important: Nothing Has Changed Yet:
Applicants and employers should understand that this is not yet a final rule.
The proposal must first complete OMB review. DHS would then generally publish the proposed regulation, disclose the actual changes it is considering, and provide a period for public comment before proceeding toward a final regulation.
Until a new rule becomes effective, the existing premium-processing rules and timeframes remain in place.
Should Employers Consider Filing Earlier?
Employers with time-sensitive H-1B, L-1, O-1 or other premium-eligible cases should carefully monitor this development.
Where a case is otherwise ready and there is a legitimate business or immigration reason to obtain an expedited decision, employers may want to discuss with immigration counsel whether it makes sense to file or upgrade to premium processing under the existing rules rather than unnecessarily delaying a filing.
There is no guarantee that the proposed rule will lengthen any particular category, however, so filing decisions should be based on the circumstances of the individual case—not speculation.
What Happens Next?
The most important development will be publication of the actual proposed rule.
Once DHS releases the proposal, we should know:
Which visa and green card categories are affected; how long the new premium-processing periods would be; whether different classifications will receive different timelines; when the changes could become effective; and whether DHS proposes any additional changes to how the premium-processing clock operates.
Bottom Line:
Premium processing has not changed yet—but DHS has officially begun the regulatory process to change its timeframes.
For employers and foreign nationals who rely on premium processing for predictable immigration decisions, this is an important development to watch closely.
IMMIGRATION COMPLIANCE ALERT: PERM Suspensions Signal a New Era of H-1B and Employment-Based Immigration Enforcement — Employers Should Audit Now, Not After the Government Comes Knocking
The Trump Administration has dramatically intensified scrutiny of employment-based immigration programs, including PERM labor certification, H-1B visas, and J-1 exchange visitor programs.
The U.S. Department of Labor recently suspended PERM processing involving several major employers while federal authorities pursue investigations concerning potential misuse of employment-based immigration programs. The government has also launched investigations into the J-1 programs of nine major U.S. universities.
These developments should serve as a significant compliance warning for every U.S. employer sponsoring foreign workers—not merely the companies currently under investigation.
What Happened?
On October 8, the Administration announced that PERM processing involving eight employers would be suspended, affecting pending cases as well as new filings.
The action follows the Department of Labor Office of Inspector General’s broader investigation, announced earlier this year, into potential fraud and abuse involving the H-1B and PERM programs.
Separately, the DOL Inspector General announced investigations into the J-1 programs of nine universities. Subpoenas have been served as investigators examine allegations involving the use of foreign researchers, compensation practices, federally funded research, and potential misuse of J-1 classifications.
Importantly, an investigation is not a finding of wrongdoing, and participation in the PERM, H-1B, and J-1 programs remains lawful for eligible employers and foreign nationals.
But the message from Washington is increasingly clear:
Employment-based immigration filings are entering an era of substantially heightened government scrutiny.
The Next Target May Not Be a Fortune 500 Company:
Employers should not assume that enforcement will remain limited to major technology companies or universities.
Government investigators may examine whether the facts presented in immigration filings match the employer’s actual business operations, recruitment practices, payroll records, work locations, organizational structure, and day-to-day employment arrangements.
This can be particularly important for employers with substantial numbers of H-1B workers, third-party placements, recent layoffs or reductions in force, significant PERM activity, rapidly changing worksites, or discrepancies among immigration, payroll and corporate records.
What Should Employers Do Now?
Conduct a proactive immigration compliance audit before receiving a government inquiry.
Employers should consider reviewing:
1. PERM Recruitment and Hiring Records
- Confirm that recruitment was conducted exactly as represented, applicants were properly considered, lawful job-related rejection reasons are documented, and recruitment reports and supporting records are complete.
2. H-1B Public Access Files and LCAs
- Confirm that required Public Access Files are complete and that wage levels, prevailing wages, actual wages, worksites and LCA information remain accurate.
3. I-129 Petitions vs. Actual Employment
- Compare every employee’s actual job title, duties, salary, worksite, supervisor and employment arrangement against the information submitted to USCIS and DOL.
4. Payroll and Wage Compliance
- Confirm that H-1B employees are receiving the required wages and that payroll records correspond with the representations made in immigration filings.
5. Remote and Third-Party Worksites
- Review remote work, client locations and worksite changes to determine whether amended LCAs or H-1B petitions should have been filed.
6. Corporate and Immigration Records
- Ensure consistency among PERM applications, LCAs, I-129 petitions, I-140 petitions, organizational charts, tax records, payroll records, corporate websites and other business documentation.
7. Layoffs and PERM Recruitment
- Employers that have conducted layoffs or reductions in force should carefully review whether the layoffs affect PERM recruitment obligations, particularly where potentially qualified U.S. workers were terminated in the same or related occupations.
8. H-1B Termination Procedures
- Review whether terminated H-1B employees were properly notified, USCIS withdrawals were submitted where appropriate, and required return transportation was offered in applicable employer-initiated terminations.
9. FDNS and Government Site-Visit Readiness
- Receptionists, HR personnel, managers and supervisors should know how to respond appropriately to government site visits and how to immediately escalate an inquiry to immigration counsel.
10. Preserve the Evidence
- Employers should maintain complete, organized and consistent immigration, recruitment, payroll and employment records. A compliant case can become difficult to defend when the underlying documentation cannot be located.
Our Recommendation: Perform an Immigration “Health Check” Now:
The best time to discover and correct a compliance problem is before a subpoena, DOL investigation, FDNS site visit, audit, Notice of Intent to Revoke, or other government inquiry arrives.
Employers with significant PERM or H-1B populations should consider conducting a confidential attorney-directed internal immigration audit covering PERM recruitment, H-1B/LCA compliance, Public Access Files, wages, worksites, employee duties, layoffs, terminations and immigration recordkeeping.
Companies should also consider establishing a written government investigation and site-visit response protocol identifying who must be contacted and what employees should do when DOL, USCIS, FDNS, ICE or another federal agency contacts the company.
Bottom Line:
PERM, H-1B and J-1 sponsorship remain lawful immigration tools. What has changed is the enforcement environment.
The recent PERM suspensions and federal investigations should be viewed as an early warning that employment-based immigration compliance is becoming a major enforcement priority.
Employers should not wait until they receive a government notice to determine whether their files can withstand scrutiny.
Audit now. Correct inconsistencies now. Document compliance now. Be prepared before the government asks questions.
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.
