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PerplexityEB-1A Draft Rule 2026: Petition for Immigrant Worker Reforms
Imagine the sequel the industry was eagerly anticipating for over a year. It was meant to change the whole franchise, but it was cancelled about seven weeks before its January 2026 target date, without any trailers or statements. This is RIN 1615-AC85, also known as the Petition for Immigrant Worker Reforms or more commonly EB1A Draft Rule 2026 – the one immigration attorneys had been counting down the days for. On November 12, 2025, USCIS quietly announced its cancellation with no press releases or public explanations, just a change in status within the Unified Agenda.
That would have been the end of it, but there is a twist. A federal judge from Nebraska spent all of January 2026 dismantling the system this cancelled rule was intended to fix.
Read More: USCIS EB1A Leadership Proof Explained: How to Document Your Major Role
The Petition for Immigrant Worker Reforms, Explained
RIN 1615-AC85 first appeared in the Department of Homeland Security’s Spring 2025 Unified Regulatory Agenda. Based on the Department’s own abstract, the proposal would have incorporated decades of the agency’s internal guidance into binding federal regulations for all three employment based preferences, EB-1, EB-2, and EB-3. The rule incorporated concepts such as successorship in interest, ability to pay, and the evidentiary criteria for EB-1A extraordinary ability, EB-1B outstanding professors and researchers, and EB-2 NIW applications.
But the Department’s abstract extended beyond evidentiary criteria as well. It included defining a “bona fide job offer,” establishing USCIS’s authority for conducting site visits in its efforts to prevent fraud, clarifying evidentiary criteria for nationally or internationally recognized physicians, and correcting any errors and omissions in the current regulations.
The notice never qualified as an official policy memo, nor did the proposal ever go into effect. The notice was stuck at the “Proposed Rule Stage,” which indicates that while USCIS has shown its intention, it has not published a Notice of Proposed Rulemaking. The proposed implementation date of January 2026 came and went. Then the notice itself was removed from the active list.
This is an important piece of information for those who read any older articles on the topic. Those articles, written throughout 2025 about “sweeping EB-1A reforms coming in 2026,” were correct regarding USCIS’s intentions back then. But they are now outdated.
Why This USCIS Rulemaking Stalled Out
There has been no release of a rationale by USCIS, and it will not be productive to speculate regarding any political maneuverings inside the organization. What is known for sure is the timing. The withdrawal happened around eleven weeks before the district court would rule that the current two-stage procedure employed by USCIS (which the withdrawn rule would have institutionalized) was never validly promulgated in the first place.
Simply put, the agency decided to abandon its solution at the moment when the court was about to provide detailed reasons for its necessity.
It is impossible to determine whether there was coincidence or some other reason behind it. What is important for practical purposes is that no regulatory reform is currently happening in EB-1A, EB-1B, and EB-2 NIW categories.
A Court Ruling Complicates the EB1A Regulation Overhaul
In Mukherji v. Miller (No. 4:24-cv-3170, D. Neb., January 28, 2026), an Indian journalist named Anahita Mukherji submitted her petition for an EB-1A classification on March 8, 2024. She met five of the ten statutory requirements for this form. Despite that, USCIS refused to consider the petition at the “final merits determination” stage, claiming the work was not recent enough to demonstrate continuous acclaim. This decision was rejected by District Court Judge Joseph F. Bataillon.
Judge Bataillon disagreed for two reasons. Firstly, it stated that the second step analysis used by USCIS was developed around 2010 via internal directives of the agency, but not in accordance with notice and comment procedure required by the Administrative Procedure Act for changes of substance. Secondly, regardless of this legal flaw, the court held that the denial was arbitrary and capricious because USCIS did not disclose what additional evidence would meet its demands, inventing the term of “continuous recognition” which is not part of the statute.
Initially, USCIS appealed this case to the Eighth Circuit. Later, the appeal was withdrawn by USCIS without giving any explanation. This marks the second time within seven months that USCIS has retreated quietly from a position taken within this story. The decision of one district court cannot be binding for adjudicators across the nation. Immigration lawyers began citing Mukherji as persuasive authority against final merits denials, but in Agarwal v. Miller (No. 4:26-cv-03049), Chief Judge Brian C. Buescher of the same Nebraska district court upheld the final merits step and declined to follow Mukherji, so the two rulings now conflict.
EB1A Requirements Change: What Actually Applies Right Now
Ignore all conjecture, and let us see what the current situation is for filing in 2026:
- There has been no change to the three-of-ten standard format. Nothing has been amended to the definition of an award, critical skill, or original contribution of major significance.
- Kazarian’s two-step process continues to be applied by adjudicators. Federal courts in Nebraska are now split: Mukherji v. Miller (January 28, 2026) held the final merits step invalid, while Agarwal v. Miller (2026) upheld it. USCIS has not indicated that it intends to discontinue the practice.
- Self-petitioning is still an option. There are no requirements of a job offer, an employer sponsor, or PERM Labor Certification for the EB-1A category.
- Priority dates are still assigned at the time of receipt of the I-140 form by USCIS. The mechanism is the same as before, regardless of anything mentioned above.
In terms of strategy for making the case, the take-away from Mukherji for a filer is not “the bar just got lowered.” It is that claims based heavily on the vague concept of acclaim-recency can be seen as legally vulnerable based on the precedent set. Strong Evidence Strategy and Narrative Development become even more important since they have to be able to withstand the final merits evaluation.
What EB1A Experts Recommend While the Rule Stays Withdrawn
There is no need to prepare for a premiere because the sequel never made it past cancellation status. But do not be fooled into thinking that an abandoned rule means a peaceful year. The plot is progressing, just through legal processes rather than rulemaking, and Mukherji shows that this plot development is possible almost out of nowhere.
Applicants facing a final merits denial based on the timing of accomplishments can cite Mukherji, but Agarwal v. Miller shows other judges may side with USCIS, so the petition itself must prove sustained acclaim. While new petitioners should stop looking for a rule that no longer exists and instead focus on the requirements that matter more than ever.
FAQs
Through RIN 1615-AC85, the policy guidance of USCIS was to be incorporated within the EB-1, EB-2, and EB-3 categories by means of extraordinary ability, outstanding professor or researcher, physician of national or international renown, and EB-2 NIW categories. “Bona fide job offer” was to be defined through this ruling, site visitation powers for prevention of fraud were granted through it, and various errors were to be rectified through it as well. However, this rule was never made final as it was never subjected to the Notice of Proposed Rule Making process.
No. This regulation has been removed from the Unified Agenda by USCIS on November 12, 2025. The DHS agenda published in August 2026 lists it under Completed Actions with the status “Withdrawn.” No Notice of Proposed Rulemaking was ever published, and no new date has been set.
Not at all. Since this particular regulation has been withdrawn without ever going through the Notice of Proposed Rulemaking stage, it did not have any legal force, and there is no change to either pending or approved petition cases. The three-of-ten criteria, the Dhanasar test, and the self-petitioner’s eligibility are still in their pre-RIN 1615-AC85 form.
The policy memorandum is a policy directive issued within the USCIS and is binding on its adjudicators without public rulemaking. RIN 1615-AC85 is a regulatory agenda item, an indication of future intention to make a rule with the power of law in the future, which needs notice and comment procedure. Its cancellation does not invalidate any policy directive issued internally, which includes the final merits review policy that a federal court had raised objection to independently.
Construct the petition based on the existing three-of-ten standard without attempting to predict a regulation change that will not be forthcoming. In light of Mukherji, have counsel review any earlier final merits denial based on the “recency” of accomplishments, keeping in mind that Agarwal v. Miller upheld the final merits step in the same district.
November 6, 2026 
