By Beata McCann
EB-1A petitions have seen a precipitious decline in approval rates. We wanted to see what exactly is being denied, so we reviewed close to 700 EB-1A decisions issued by the Administrative Appeals Office (AAO) from January 2025 through September 2026. The pattern is clear. Petitioners are still meeting the basic criteria. They are losing at the “final merits” stage, where USCIS asks whether the whole record shows someone at the very top of their field.
Key Takeaways
- Approval rates have dropped sharply. From April through June 2026, USCIS approved 1,348 EB-1A petitions and denied 2,832, a 32% approval rate. In summer 2024 it was 74%.
- The fight has moved to step two. More denials now involve petitioners who met three criteria but failed the final merits review.
- Weak evidence can backfire. The AAO is withdrawing criteria USCIS had already accepted.
- Appeals rarely succeed. Fewer than 1% of appeals won outright.
- Timing and evidence quality matter more than volume.
Background: How EB-1A Is Decided
The EB-1A (Extraordinary Ability) green card is a two-step analysis:
- Step one: The petitioner meets at least three of the 10 regulatory criteria, such as awards, judging the work of others, or published material about the petitioner.
- Step two, final merits: USCIS weighs all the evidence together and decides whether the petitioner has sustained national or international acclaim and is among the small percentage at the top of the field.
What the AAO Decisions Show
Meeting three criteria is no longer the hard part
In 2025, about 1 in 8 appealed denials involved petitioners who passed step one and lost at step two. In 2026, it is nearly 3 in 10. Final merits is now where cases are won or lost.
Evidence that helps at step one can hurt at step two
In 24 of the 94 step-two appeals decided in 2026, the AAO went further and withdrew at least one criterion USCIS had already granted. Marginal evidence doesn’t just fail to help. It can become part of the government’s reasoning to uphold the denial.
“Sustained” acclaim means sustained
In about 1 in 4 final merits decisions, the AAO noted that most of the evidence came from the year or two before filing. Three judging invitations and an award collected in the 18 months before filing look like a sprint, not a career. USCIS is not approving career sprints.
An appeal is not a do-over
Of 635 appeals, only four were sustained outright, which is under 1%. About 15% were sent back to USCIS for another review.
Mukherji v. Miller has not changed outcomes
This year, a Nebraska federal court ruled against a USCIS final merits denial in Mukherji v. Miller. Since then, the AAO has addressed the case in 47 decisions and dismissed 45 of them.
What Employers and HR Teams Should Know
- Don’t treat EB-1A as the fast, safe path. With approvals near one in three, employees who rely on EB-1A alone may face longer stays in nonimmigrant status and a higher risk of gaps.
- Keep backup strategies in place. For key employees, consider pursuing PERM-based EB-2 or EB-3 or Schedule A at the same time, or keeping it ready, rather than dropping it in favor of a self-petition.
- Plan around the timeline. A denial, followed by an appeal or a refiling, can take many months. Check how that affects H-1B maximum stays, AC21 extensions and retention plans.
- Set expectations internally. Executives and researchers may hear that EB-1A is “easy if you meet three criteria.” That is no longer accurate, and managers should know it before making promises.
- Support documentation early. Employers are often the best source of evidence of a critical role and of independent recognition. Gathering it well before filing strengthens the final merits case.
What Foreign Nationals Should Know
- Build for step two from day one. Every exhibit should answer one question: who outside your immediate circle noticed your work, and why does it matter?
- Look at your timeline. If most of your evidence is recent, you may be stronger in a year. A focused, well-timed filing beats a fast one padded with extraneous evidence.
- Choose your evidence carefully. A vanity award or an article in a weak journal can do more harm than good.
- If you’re denied, compare your options before acting. Weigh an appeal against refiling a stronger petition, considering cost, timing and your current status.
- Ask the right question. It’s not “Do I meet three criteria?” It’s “Does my whole record tell the story of someone at the top of the field?”
How Meltzer Hellrung Can Help
Meltzer Hellrung advises employers and individuals on EB-1A strategy, from early case assessment and evidence planning to filing, responses to Requests for Evidence, and appeal-versus-refile decisions. We also help HR teams build backup green card strategies so key talent isn’t left depending on a single high-risk petition.
To find out whether an EB-1A is a realistic option, or how to position a case for today’s final merits standard, contact us.
