United States Citizenship and Immigration Services (USCIS) issued a policy update that reshaped how EB-1A extraordinary ability petitions are adjudicated. This update has significant implications for individuals at the top of their fields who are pursuing permanent residence through this category. Traditionally, EB-1A petitions involved a degree of officer discretion, meaning that even if a petitioner met the required criteria, a USCIS officer could weigh positive and negative factors before granting approval. The new guidance, however, directs officers toward a more rigid, non-discretionary approach, limiting the role of personal judgment and focusing more directly on whether each statutory requirement is met. 

For professionals in 2026, understanding what counts as discretionary and what counts as non-discretionary is critical. For the initial criteria-based assessment, whether an individual meets at least three of the regulatory criteria, we are moving from opinion-based to purely statutory assessment. It’s becoming more of a checklist approach focusing on regulatory criteria compliance, which should reduce Request for Evidence (RFE) rates as subjective evaluation is eliminated so long as all elements of the plain language of the criteria are met. This shift affects both how cases are prepared and how they are argued if a denial occurs. 

What is Discretionary and Non-Discretionary Adjudication? 

Discretionary adjudication is the process by which a USCIS officer, in the process of determining that a requestor meets all threshold eligibility requirements, incorporates a separate, individualized analysis dependent on the specific officer’s opinion to decide whether to grant certain immigration benefits through a favorable exercise of discretion. In those cases, the officer balances positive and negative factors, such as the level of importance of the evidence presented, how well it adheres to the plain language of the criterion, contributions to the field, or possible concerns regarding admissibility or evidence legitimacy. Meeting the statutory rules alone is not enough, because USCIS must decide whether the benefit should be granted as a matter of discretion. 

Alternatively, non-discretionary adjudication works differently. When a benefit is non-discretionary, the officer cannot apply personal judgment once the petitioner has met all threshold requirements. If the statutory and regulatory standards are satisfied, the petition must be approved. The USCIS Policy Manual makes this distinction clear, noting that certain petitions are discretionary while others are not. Employment-based immigrant petitions, including EB-1A, were historically treated as involving discretionary elements, but the 2025 policy update is pushing EB-1A firmly toward the non-discretionary side of the line. This is why most practitioners now refer directly to EB-1A discretionary vs non-discretionary guidance when advising clients. 

EB-1A Before the Update 

For many years, EB-1A adjudications have followed a two-step analysis based on Kazarian v. USCIS. Under Kazarian, officers first determined whether the petitioner had provided evidence that met at least three of the ten statutory criteria, such as awards, publications, or judging the work of others. Of note, officers were permitted to utilize individualized discretion when determining whether the Petitioner met each criterion. Once that threshold was met, the officer then conducted a “final merits determination,” which allowed discretion to weigh the quality and significance of the evidence.

The interplay of officer’s discretion with the plain language of the law, particularly in the second step, often became the deciding factor. Petitioners who presented evidence that otherwise would meet the plain language of the criteria sometimes still received denials if the officer determined the overall record did not show the level of extraordinary ability required. This left room for subjective interpretation, and two cases with similar evidence could produce different outcomes depending on the adjudicator. This is now widely contrasted with the current EB-1A discretionary vs non-discretionary guidance framework. 

EB-1A After the Update 

The August 2025 policy update appears to restrict this discretion. According to PA-2025-16, the exercise of discretion in the adjudication of an employment-based immigrant petition is limited to cases where the alien is seeking a National Interest Waiver. This statement, while not directly relating to the EB-1A category, indirectly proscribes that any I-140 petition other than an NIW is to be non-discretionary in their adjudication. This necessarily means that EB-1A petitions are not to be discretionary in nature as they are not, by default, a National Interest Waiver. 

Under the new guidance, USCIS officers are expected to evaluate evidence strictly against the statutory definitions and regulatory requirements. If the evidence satisfies the criteria, the petition should be approved. USCIS appears to have taken away officers’ ability to use their personal opinionsabout whether someone deserves the visa. The standards are the standards. Meet them with proper evidence, and the case should be approved. 

This has practical consequences. For example, in the “judge of the work of others” criterion, invitations alone are no longer persuasive. Petitioners must show actual service, proof of evaluation, and alignment with their own field of expertise. In the past, officers could interpret the criteria and evidence loosely, and still either credit or discredit such evidence. Today, flexibility is not applicable under the EB-1A discretionary vs non-discretionary guidance framework with respect to the assessment of the statutory and regulatory criteria.

However, it is worth noting that the applicability of the removal of discretion to the Final Merits Determination assessment established under Kazarian is a lot less obvious. On one hand, it is possible that the policy manual update is intended to undo the necessity of the discretionary Final Merits Determination. On the other hand, it is more likely that the discretionary restriction is not meant to overturn Kazarian but provide additional basis for officer adjudication. In short, Petitioners will still have to present evidence and argument for a Final Merits Determination, but the level of officer opinion and discretion when making the determination will be restricted to more objectively provable evidence surrounding whether an individual is atop of their respective field and garnered national or international acclaim. 

Update Policy: What are the Differences Before and After?

What Petitioners Must Do Differently in 2026 

For petitioners preparing EB-1A petitions in 2026, the evidence must be airtight and aligned with the statute. Each criterion claimed should be supported with independent, verifiable documentation that clearly demonstrates eligibility. Weak evidence can no longer rely on discretionary generosity from officers. 

There have been instances where three criteria are granted, but an RFE is still issued because weaker criteria were included. The safest option is to just claim the best three if you can, to reduce the bandwidth for USCIS to question additional claimed criteria. Obviously, if you do have a strong case for 4 or 5 criteria to be claimed, that can happen at the assessment and advice of your attorney. This means petitioners should focus on their strongest arguments, rather than presenting a scattershot of partially documented claims. 

Another adjustment is the way petitioners argue about the merits of their case. Instead of relying on a final, subjective “big picture” argument, petitioners should build their narrative into each criterion. The evidence itself must tell the story that the individual is at the very top of their field. In this way, the Petitioner is proving not only the regulatory criteria, but the final merits determination throughout the narrative of the case.

Frequently Asked Questions 

Does the EB-1A still involve officer discretion? 

The recent USCIS Policy Manual update has significantly reduced discretion in EB-1A adjudications. Officers are now directed to apply an objective approach that focuses on whether each regulatory requirement is met. While small areas of judgment remain, the traditional “final meritsdetermination” is being narrowed. 

Can USCIS still deny my EB-1A if I meet the criteria? 

Under the non-discretionary approach, if the evidence satisfies the statutory requirements, USCIS should approve. Denials are now more likely when the evidence does not directly prove the claimed criteria. This makes documentation and presentation critical. 

Will RFEs decrease under the new nondiscretionary framework? 

Initially, RFEs may continue as officers adapt to the new system, especially in premium processing cases. Over time, as officers rely less on personal interpretation, the expectation is that RFEs will decrease in both number and scope. 

How does this compare to EB-2 National Interest Waiver petitions? 

The EB-2 NIW remains discretionary by statute. Officers balance positive and negative factors when deciding whether the waiver is in the national interest. This makes EB-1A a more predictable option for many high-skilled professionals in 2026. 

Can denials still be challenged? 

Yes. In fact, the new nondiscretionary framework strengthens grounds for appeal and litigation. If a denial reflects discretionary reasoning rather than strict application of the statute, attorneys can argue that the officer applied the wrong standard. 

Conclusion 

The shift from discretionary to non-discretionary treatment of EB-1A petitions in 2026 represents a turning point. Petitioners now face a process that is stricter but also more predictable. Meeting the statutory requirements with clear, well-documented evidence is the key to success.