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Impact of the Second Trump Administration on the EB-1A (Alien of Extraordinary Ability) Green Card Category

Introduction

There are many different paths or categories a foreign national may pursue to obtain a U.S. Green Card. Among the various employment-based Green Card categories, the EB-1A (Alien of Extraordinary Ability)  is unique. What makes the EB-1A category unique as compared to many of the other categories is that it allows foreign nationals in the sciences, arts, education, business, or athletics to self-petition for a U.S. Green Card without having a job offer or an employer willing to file the Immigrant Petition for Alien Worker (Form I-140) on the foreign national’s behalf.   While the laws governing the EB-1A category have remained unchanged, the processing of petitions in this category has shifted significantly due to government policy, adjudicatory culture, and technology.  A major inflection point occurred during the first Trump administration under the “Buy American and Hire American” executive order, which directed agencies to apply heightened scrutiny to employment-based petitions to protect U.S. labor. While it would not seem that such a directive would apply to the EB-1A (Alien of Extraordinary Ability Alien) category, this category did not go unscathed. This article will examine the current impact of the second Trump Administration on the adjudication of EB-1A petitions.

The purpose of the EB-1A category

The EB-1A category was designed to identify and retain individuals who have risen to the top of their field of expertise. Under the Immigration and Nationality Act (INA), in order to qualify for the EB-1A category, the foreign national must demonstrate sustained national or international acclaim.  The foreign national may do this either through receipt of a one-time major internationally recognized prize or award (Example: the Nobel Prize), or by providing documentation that evidences the foreign national has met at least three criteria out of a list of various criteria under the regulations. The various criteria may include, among other things, evidence of scholarly publications, original contributions of major significance in the field, participation as a judge of the work of others in the field,  the foreign national has  leading or critical role with an organization with a distinguished reputation, evidence about the foreign national or the foreign national’s work in trade publications or other major media, and high compensation relative to others in the foreign national’s field, etc.

However, satisfying three (3) criteria does not automatically establish eligibility. USCIS adjudicators conduct a “Final Merits Determination” to assess whether the foreign national truly belongs to the small percentage of individuals who have risen to the top of their field. This Final Merits Determination review is highly subjective as the USCIS examiner assesses the totality of the evidence submitted in the petition to determine whether the foreign national has  satisfied the requirements for extraordinary ability. 

Historically, the EB-1A category functioned within a relatively stable adjudicatory environment. Prior to 2017, EB-1A approval rates were consistently high, often approaching or exceeding 85% (eighty-five percent).  In practice, experienced practitioners could evaluate a case with a high degree of predictability. Strong candidates with substantial documentary evidence often had a realistic expectation of approval. However, that predictability began to change during the first Trump administration.

EB-1A petition processing under the first Trump Administration 

During the first Trump administration, statutory requirements remained unchanged, but adjudication practices became significantly more restrictive. The “Buy American and Hire American” policy of the first Trump Administration influenced a broader enforcement-oriented approach across employment-based immigration categories.USCIS officers increasingly relied on the Final Merits Determination step in the EB-1A petition process to deny petitions even when foreign nationals met well over three (3) of the regulatory criteria. Requests for Evidence (RFE) focused more on the significance and credibility of the foreign national’s achievements. By 2019, approval rates declined sharply compared to earlier years, and adjudications became less predictable. 

USCIS statistics reflect – 7,205 EB-1A petitions were approved in FY 2016;  8,445 EB-1A petitions were approved in FY 2017;  7,154  EB-1A petitions were approved in FY2018;   4,652 EB-1A petitions were approved in FY2019; and 4,196 EB-1A petitions were approved in FY2020. This shows the number of EB-1A approval notices issued by USCIS declined sharply at the end of the first Trump Administration.

EB-1A petition processing under the Biden Administration 

Under the Biden administration, it appears that the scrutiny established during the first Trump administration  persisted. USCIS continued to apply the structured two-step analysis requiring both satisfaction of regulatory criteria and passage of a Final Merits Determination review. Although approval rates improved relative to approval rates during the first Trump Administration, adjudications remained more rigorous and more reliant on the submission of objective evidence for success, as compared to the pre-2017 environment.  This continuity is important to note, because it shows that adjudication standards within an EB-1A context persisted beyond different governmental administrations. 

USCIS approval rate statistics at the end of fiscal year (FY) 2024 reflect an approval rate of approximately 72% for EB-1A petitions.  Total EB-1A petitions approved in FY 2024 were 12,231 showing that by the mid-point of the Biden administration, EB-1A approval rates had essentially recovered the volume lost during the Trump years.  

EB-1A petition processing under the second Trump Administration 

With the return of the Trump administration in 2025, immigration policy has again shifted toward selectivity, with an emphasis on increasing the scrutiny of qualitative evidence and greater emphasis on objective, verifiable evidence or documentation with respect to the foreign national’s achievements in the field.  

Here is a table that compares and contrasts the EB-1A adjudication environment from pre-2017 to the present:

EB-1A Adjudication Environment from Pre-2017 to Post-2025

USCIS approval rate statistics at the end of fiscal year (FY) 2025 reflect an approval rate of approximately 66% for EB-1A petitions with 12,468 approval notices issued.  For the first quarter of 2026, USCIS approval rate statistics for EB-1A petitions had an approval rate of 47% with 2,180 approval notices issued.  This data reveals two things. First, it reveals there were an extremely large number of EB-1A approval notices issued in FY2025, as compared to prior years.  Second, the EB-1A petition approval rate since FY2024 has declined considerably and continues to do so. 

Evolving Standards for EB-1A in the Second Trump Administration

While the regulatory framework under the INA and USCIS regulations has remained unchanged, adjudication practices have evolved with greater emphasis placed on citation counts, patents issued, media coverage in reputable outlets, and evidence of commercial or industry adoption of the foreign national’s work. Evidence documenting such achievements is extremely helpful to establish that a foreign national has achieved sustained national or international acclaim, consistent with the two-step framework articulated in Kazarian v. USCIS.

This shift reflects a focus on the Final Merits Determination step of the review process by USCIS examiners. Even when foreign nationals satisfy three or more regulatory  criteria, USCIS examiners may still deny petitions if the totality of evidence does not demonstrate that the individual is among the small percentage who have risen to the very top of their field.  In practice, this has moved adjudications away from a checklist-based model and toward a comparative assessment of the foreign national’s influence and standing within the field. As a result, evidence is no longer evaluated primarily for its existence or formal compliance with regulatory categories; rather, there is a focus by USCIS examiners on the actual impact the foreign national’s work has had on the field, particularly in terms of external recognition and independent validation.

Consequently, EB-1A petitions increasingly require a coherent narrative of impact supported by objective evidence, rather than reliance on qualitative endorsements from experts in the field. Recommendation letters, awards, and institutional affiliations remain relevant, but they carry significantly more weight when corroborated by independent objective evidence, such as a citation count, implementation of the foreign national’s research or technology by others in the field, or evidence of the foreign national’s work having an economic impact on the country. This evolution reflects a broader adjudicatory trend in which extraordinary ability is inferred not only from achievements and/or credentials in the field, but from verifiable evidence of sustained influence on the field at a national or international scale.

How does USCIS handle the Final Merits Determination step in light of Mukherji v Miller?

As indicated above, USCIS examiners are to  evaluate first whether the foreign national has met at least three of the regulatory criteria.  If so, the USCIS examiner is then to conduct a holistic assessment as to whether the foreign national has achieved sustained national or international acclaim. This second step of the review process is known as the Final Merits Determination. The Final Merits Determination step gives USCIS examiners broad discretion, making the overall narrative of achievement as important a component to achieve success.

The Final Merits Determination step of the EB-1A petition review by USCIS examiners has been challenged in court and found to violate the Administrative Procedures Act (APA).  In Mukherji v. Miller, No. 4:24-CV-3170, Doc #24 (2026), the U.S. District Court for the District of Nebraska held that USCIS could not deny an EB-1A petition based on the Final Merits Determination step in the EB-1A review process after the petitioner had satisfied the regulatory criteria established under the regulations. The judge concluded that the Final Merits Determination step functioned as a substantive rule that had not been subjected to the rulemaking procedures required by APA. As a result, the implementation of the Final Merits Determination step was considered to be unlawful. The decision in Mukherji v Miller is not binding nationwide, but it represents  a direct challenge to the legality of the Final Merits Determination step in the EB-1A petition review process.  

Senior United States District Judge Joseph F. Bataillon in the case stated the following in his decision:

“. . . [T]he Court determines that the defendant has acted in an arbitrary and capricious manner. The plaintiff submitted substantial documentation of her excellence, including most impressive letters of recommendation touting her high-level contributions in her journalistic specialty; Plaintiff submitted a number of authorships and co-authorships in her areas of research, although many were discounted by the Agency; and she clearly has a very high level of achievement. The Court has carefully reviewed the decision of the reviewing officer. It is unclear as to why the officer determined that Plaintiff did not meet the “Excellent” level. There is no articulated standard, objective, or specific criteria upon which this Court can judge why she did not meet the standards. “If the officer determines that the petitioner has failed to demonstrate eligibility, the officer should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific and legal reasons as to why the officer concluded that the petitioner has not demonstrated by a preponderance of the evidence that the person has extraordinary ability.” USCIS Policy Manual, Vol. 6, Part F, Chapter 2 (December 22, 2025). If the reviewing officer fails to delineate the specific and legitimate reasons for the denial, then that is an arbitrary and capricious decision. Here, the reviewing officer failed to articulate the required standard and the failure to meet that standard by the plaintiff.” (Mukherji v. Miller, No. 4:24-CV-3170, Doc #24, 2026)

The significance of the Mukherji decision is further underscored by the government’s subsequent withdrawal of its appeal before the U.S. Court of Appeals for the Eighth Circuit. By voluntarily dismissing its appeal, the government allowed the district court’s decision, invalidating the Final Merits Determination step, to remain intact. While the withdrawal does not transform Mukherji into binding nationwide precedent, it suggests that USCIS lacked sufficient confidence in its legal footing to obtain appellate review and reversal. At a minimum, the withdrawal leaves unrefuted a federal court’s conclusion that the Final Merits Determination step was adopted and applied in a manner inconsistent with APA. 

USCIS has not formally revised its USCIS Policy Manual or otherwise addressed the legal deficiencies identified in Mukherji, leaving the continued implementation of the Final Merits Determination step subject to question. Consequently, where an EB-1A denial rests materially on a negative Final Merits Determination rather than the regulatory criteria itself, such a denial may present a ripe basis for review in federal district court under the APA and related causes of action challenging agency action that is arbitrary, capricious, contrary to law, or adopted without required rulemaking procedures. This is especially true, if the USCIS examiner has not articulated in the denial notice the basis as to why a positive Final Merits Determination was not made, and the foreign national has a pattern of success and/or achievement spanning many years. 

Observations with respect to current use of AI in EB-1 petition adjudications

Although USCIS has not formally confirmed the use of artificial intelligence with respect to the adjudication of EB-1A petitions, the broader digitization of immigration processing has  increased reliance on automated systems for functions such as document intake, fraud detection, pattern recognition, and internal consistency checks. These tools are generally understood to operate as support mechanisms within USCIS workflow rather than as systems that make independent determinations on eligibility with respect to extraordinary ability.

In practice, these technologies may nonetheless shape how evidence is organized, filtered, and prioritized during review. There is concern that algorithmic or semi-automated systems may place disproportionate weight on quantifiable indicators of achievement, such as citation counts or patents granted, while being less effective at capturing nontraditional, interdisciplinary, or qualitative forms of influence that are central to many EB-1A profiles.

As a result, the emerging model appears best understood as a hybrid adjudicatory framework, in which automated systems assist with preliminary processing and evidentiary organization, while human USCIS examiners retain ultimate discretion in the Final Merits Determination step. This structure signals a gradual shift toward a more data-structured adjudication environment in which measurable forms of evidence play an increasingly prominent role. It also makes one ponder whether AI will soon replace humans with respect to the adjudication of EB-1A petitions. 

There have been Requests for Evidence (RFEs) issued in connection with certain EB-1A petitions in which USCIS examiners have made accusations that the expert letters submitted in support of an EB-1A petition have been written by AI. This would suggest that USCIS examiners may be using some form of AI to check the text of expert letters to determine if the text is written in the expert’s own words or AI generated.  There is nothing in the regulations, statutes or USCIS policy guidance that prohibits an expert from using AI to assist with writing an expert letter, and the RFEs issued seem to only  accuse the expert letter of having been written using AI without asserting the expert letter should be given little to no weight.  However, to avoid trouble, those who do write letters of recommendation on behalf of a foreign national seeking the benefit under the EB-1A category may be prudent to avoid using any form of AI when writing letters of recommendation. 

DOGE Transformation, Other Trends, and Future of AI-Assisted Review

Administrative modernization efforts and efficiency-driven reforms associated with the Department of Governmental Efficiency (DOGE) have contributed to broader structural changes in federal immigration processing, particularly within USCIS. These reforms emphasize cost reduction, workflow optimization, and increased digitization of government adjudicatory systems. In practice, this has accelerated the transition from paper-heavy case management to more standardized, data-driven digital processing environments.

At the same time, resource constraints, staffing pressures, and rising caseload volumes may encourage more conservative adjudication behavior at the USCIS examiner level. As cases become more complex and throughput expectations increase, USCIS examiners may rely more heavily on structured review frameworks and standardized evidentiary expectations.

Within this evolving environment, the EB-1A adjudication model is likely to combine AI-assisted pre-screening, automated fraud detection tools, and structured data extraction systems with traditional human adjudication. While final decision-making authority is likely to remain with USCIS examiners, the evidentiary analysis supporting those decisions is increasingly shaped by digital systems that prioritize consistency, pattern recognition, and measurable indicators of impact. This broader shift reflects the gradual emergence of a more data-centric immigration system in which quantifiable evidence of achievement plays an increasingly significant role in adjudicatory reasoning.

Conclusion

The EB-1A category has evolved significantly despite unchanged statutory language. The Trump-era enforcement policy, particularly the “Buy American and Hire American” executive order of April 2017, has contributed to a lasting increase in scrutiny and a structural shift toward a rigorous Final Merits Determination review by USCIS examiners. The emergence of wealth-based immigration proposals such as the Gold Card, and efforts by the government to digitize the adjudication process, suggest that the EB-1A category may be moving toward a more selective, metrics-driven, and strategically filtered framework. For foreign nationals pursuing the EB-1A category, extraordinary ability must be demonstrated not only through achievement, but through verifiable, objective evidence of measurable impact, capable of withstanding both human review as well as review involving some form of AI.

List of Sources

1. Statutory & Regulatory Framework (Core Legal Authority)

• Immigration and Nationality Act (INA) §203(b)(1)(A)
  https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1
  (Defines EB-1A extraordinary ability immigrant classification) 
• 8 C.F.R. §204.5(h) – Immigrant Petition for Alien Worker (Extraordinary Ability)
  https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-204/section-204.5 

2. USCIS Policy Guidance (Adjudication Framework)

• USCIS Policy Manual, Volume 6, Part F, Chapter 2 – Extraordinary Ability (EB-1A)
  https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2
  (Primary guidance on EB-1A criteria and final merits determination) 
• USCIS Policy Manual – Evidence Evaluation / Final Merits Framework (Kazarian guidance embedded): https://www.uscis.gov/policy-manual 

3. Case Law / Precedent Decisions

• Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)
  (Establishes two-step EB-1A adjudication: criteria + final merits determination) 
• Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)
  (Defines “preponderance of the evidence” standard used in immigration adjudications) 

4. Executive Policy Framework (Trump Era Enforcement Shift)

• Executive Order: “Buy American and Hire American” (EO 13788, 2017)
  https://trumpwhitehouse.archives.gov/presidential-actions/presidential-executive-order-buy-american-hire-american-putting-american-workers-first/ 
• DHS Policy Memorandum (general enforcement posture shifts affecting employment-based adjudications, 2017–2020 era guidance)
  https://www.dhs.gov/archive/policy 

5. USCIS Adjudication Trends & Practitioner Analyses

(Useful for describing empirical shifts in RFEs, approval rates, and evidentiary standards)

• Klasko Immigration Law Partners – EB-1A adjudication trends and RFE increases
  https://www.klaskolaw.com/ 
• Murthy Law Firm – EB-1A extraordinary ability analysis and RFE trends
  https://www.murthy.com/ 
• Berry Appleman & Leiden (BAL) – Employment-based immigration trend reporting
  https://www.bal.com/ 
• Mahmudul Hasan (Linked-In) – Trends in EB-1A Immigration Petitions (FY 2016-FY 2024): (27) Trends in EB-1A Immigrant Petitions (FY2016–FY2024) | LinkedIn
• USCIS (FY 2025 and FY 2026 Q1 Data) – Department of Homeland Security, U.S. Citizenship and Immigration Services, Immigration and Citizenship Data: Immigration and Citizenship Data | USCIS

6. Academic / Policy Commentary on Skilled Immigration

• National Foundation for American Policy (NFAP) – Employment-based immigration analysis
  https://nfap.com/ 
• Migration Policy Institute (MPI) – U.S. high-skilled immigration policy research
  https://www.migrationpolicy.org/ 

7. AI, Digitization, and Administrative Adjudication Context

• USCIS Digital Transformation Program (case management modernization)
  https://www.uscis.gov/about-us/directorates-and-program-offices/uscis-digital-transformation 
• GAO Reports on AI in federal agencies (automation in adjudication contexts): https://www.gao.gov/ 
• Administrative Conference of the United States (ACUS) – AI in administrative decision-making: https://www.acus.gov/ 

8. Economic / Global Talent Competition Context

• OECD Migration Data – skilled migration trends: https://www.oecd.org/migration/ 
• World Bank Migration and Remittances Data
  https://www.worldbank.org/en/topic/migrationremittancesdiasporaissues 

9. EB-5 / Gold Card Context (Comparative Immigration Policy)

• USCIS EB-5 Immigrant Investor Program Overview
  https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5 
• Congressional Research Service (CRS) reports on investment-based immigration programs
  https://crsreports.congress.gov/ 

The content of this article is intended only to provide a general guide to the subject matter. It should not be construed as legal advice. Please contact FGI at info@employmentimmigration.com or (+1) 248.643.4900 for guidance if you have specific questions.