DHS Withdrew Its EB-1 and NIW Overhaul — the Current Standards Stand

What happened

DHS has withdrawn the rulemaking that would have overhauled how USCIS adjudicates employment-based green card petitions. The rule, titled “Petition for Immigrant Worker Reforms” and tracked as RIN 1615-AC85, had been listed for a proposed-rule stage with a notice of proposed rulemaking anticipated in early 2026. Its entry on the government’s regulatory tracker now tells a different story: the abstract on the reginfo.gov record opens with “USCIS is withdrawing this rule from the Unified Agenda,” and the rulemaking is filed under Completed Actions rather than a pending stage.

This was not a minor housekeeping rule. As drafted, it would have updated the evidentiary standards for extraordinary ability (EB-1A) and outstanding professors and researchers (EB-1B), clarified the evidentiary requirements for the national interest waiver, defined what counts as a bona fide job offer, formalized DHS’s authority to conduct employer site visits, and codified existing policy on successorship-in-interest and ability to pay. For anyone working in the extraordinary-ability space, a rewrite of the evidentiary standards was the part that mattered most, and it is the part that is now shelved.

What the withdrawal changes, and what it doesn’t

The clearest effect is on expectations. For much of the past year, the looming rule generated a steady drumbeat of advice to file quickly and beat a tightening of the standards. That pressure is now gone. There is no pending proposal, no comment period to track, and no effective date to plan around. The standards that governed extraordinary-ability and NIW petitions before the rule was ever floated are the standards that govern them today, unchanged.

What has not changed is the substance of those standards, because the rule never took effect to change them. An EB-1A petition is still judged against the ten regulatory criteria at 8 CFR 204.5(h) and the two-step analysis that separates counting the criteria from the final merits determination, an approach USCIS follows in its Policy Manual guidance on extraordinary ability. A national interest waiver is still evaluated under the three-prong Dhanasar framework. The burden of proof, the criteria, and the discretion all sit exactly where they did last month.

The quieter downside

It would be easy to read the withdrawal as unambiguously good news for applicants, and mostly it is, but there is a subtler tradeoff worth naming. Part of what the rule would have done was codify existing policy guidance and administrative decisions into regulation, including the standards around ability to pay and successorship-in-interest. Regulation is harder to undo than a policy memo; it takes another round of notice-and-comment rulemaking to change. By leaving that guidance uncodified, the withdrawal keeps the current adjudication approach resting on policy manual provisions and precedent decisions that USCIS can revise through a memorandum, without public comment, whenever it chooses.

So the same withdrawal that spares applicants a tightening of the evidentiary standards also declines to lock in the favorable pieces of current practice. For a filer today that is a reasonable trade, because the immediate benefit is concrete and the lost protection was only ever hypothetical. But it is a reminder that the stability the withdrawal creates is the stability of policy, which can move, not of regulation, which mostly cannot.

What extraordinary-ability filers should do now

The practical guidance is straightforward, and it is close to what it would have been anyway. File when the record is actually ready. The case for rushing a petition to beat the rule has evaporated, and a petition assembled quickly to outrun a deadline that no longer exists is exactly the kind of thin filing that draws a request for evidence or, increasingly, an outright denial. That risk is real in the current climate, where USCIS has separately given itself room to deny incomplete petitions without an RFE first.

Build to the criteria that are in force today. For EB-1A that means documentary evidence mapped to the regulatory criteria and a final-merits narrative that explains why the record as a whole shows sustained acclaim, the subject of our piece on the final merits determination. For the NIW it means a disciplined Dhanasar argument, which our national interest guide works through. None of that preparation is wasted or made obsolete by a rule change, precisely because the rule change is not coming. And keep a light watch on future regulatory agendas: a withdrawn rule can return in a later form, and if a similar proposal reappears, the time to weigh filing ahead of it is when there is an actual comment period and effective date to plan around, not before.