The rising number of EB-1A visa denials in 2026 may not be because applicants are unqualified, but because they are presenting their cases poorly, according to immigration attorney Kevin J Andrews.
In a recent LinkedIn post, Andrews said many applicants with strong profiles, including publications, citations, patents, judging experience and memberships in professional organizations, are still getting denied under stricter USCIS scrutiny. “Many EB-1A denials in 2026 are not eligibility failures; they are presentation failures,” Andrews wrote in the post.
Denial rates have risen since mid-2025
According to Andrews, the denial rate for EB-1A petitions has climbed sharply since mid-2025 even though the legal standards remain unchanged. He said the real battleground has shifted to the “Final Merits Determination” stage of adjudication under the Kazarian framework.
“The regulations have not changed but USCIS adjudication strategy has,” he wrote. Andrews also referred to the January 2026 court decision in Mukherji v. Miller, which challenged the Final Merits Determination framework. The ruling is currently under appeal, with the Department of Homeland Security defending the framework.
‘What’s your blueprint?’
In the LinkedIn post, Andrews shared the example of a prospective EB-1A applicant who listed achievements such as publications, citations, keynote speaking engagements, journal reviewing work and a patent. The applicant wanted to know whether the accomplishments were enough to qualify. Andrews said his response was simple: “What’s your blueprint?” “He had listed all his materials hoping a blueprint would emerge,” Andrews wrote.
Comparing EB-1A petitions to building a house
The attorney compared EB-1A petitions to building houses, saying the evidence submitted by applicants is only useful if it supports a larger, consistent narrative. “The criteria are building materials. The Final Merits Determination is the blueprint,” he said. “A pile of lumber, drywall, and copper pipe sitting in a lot is not a house.”
According to Andrews, USCIS officers are increasingly focusing on whether the overall petition demonstrates “sustained acclaim” rather than simply checking whether multiple criteria are technically met.
USCIS now using approved criteria against applicants
Andrews said USCIS is now conceding multiple criteria at the first stage of review but later using those same criteria to deny applications during the Final Merits Determination stage. For example, he said a recent membership in an elite organization may satisfy one criterion initially, but officers may later argue that the achievement is too recent to prove long-term recognition. “The criterion that satisfied Step One becomes the loose thread to unwind the entire case at Step Two,” he wrote. He added that similar scrutiny is being applied to recent awards, late-career judging roles and contributions that lack a long-term impact narrative.
‘Precision over volume’
Andrews advised applicants to focus on a smaller number of strong and consistent criteria rather than trying to include every possible achievement. “Three sharp criteria with airtight FMD integration outperform seven loose ones,” he wrote. He also warned that including weak or inconsistent claims can hurt otherwise strong petitions.
“The question is not whether a criterion is technically satisfied. The question is whether including it strengthens the FMD narrative or weakens it,” Andrews said.
The ‘elevator pitch’ test
The attorney suggested that applicants should be able to explain their extraordinary ability in a few clear sentences. He proposed a test: If all professionals in a field were gathered in one room, would the top people in that field recognise the applicant as belonging to the upper percentile?
According to Andrews, a strong EB-1A petition should clearly define the applicant’s exact field, the standard work done by others in that field, the applicant’s specific contribution, and evidence showing recognition by the wider industry. “A petition built backward from a defensible answer to that question is a petition with a blueprint,” he wrote.
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