Upcoming DHS Rule May Tighten EB-1 and NIW Standards — Why Now Is the Time to Apply

The Department of Homeland Security has announced plans to propose a new rule that could significantly change how USCIS adjudicates EB-1A (Extraordinary Ability) and EB-2 National Interest Waiver (NIW) petitions. According to a recent Forbes report, the rule, expected as early as January 2026, aims to “update and modernize” evidentiary standards for extraordinary ability and outstanding researcher classifications.

Former USCIS policy officials have warned that the new rule may make it harder to demonstrate “extraordinary ability” or “national interest,” potentially requiring applicants to meet more evidentiary criteria or limiting flexibility for those in emerging or interdisciplinary fields. Some immigration policy watchers have speculated that the rule could raise the EB-1A threshold from the current 3 out of 10 criteria to as many as 5 out of 10, significantly tightening eligibility. While this has not been confirmed, it underscores the potential for major changes in how these petitions are evaluated.

Although the Department has not yet released the text of the proposal, the rulemaking process itself can take time. Under standard administrative procedures, a Notice of Proposed Rulemaking (NPRM) must first be published in the Federal Register, followed by a public comment period—often 30 to 60 days—and then agency review. From publication to implementation, this process can easily take nine months to a year or longer. However, given recent trends, it’s unclear whether this administration will adhere to traditional timelines or procedural norms. As we’ve seen, longstanding rulemaking conventions have sometimes been accelerated or disregarded, making it difficult to predict how quickly this proposed rule could move forward.

At the same time, many foreign nationals in H-1B status are facing growing uncertainty about H-1B extensions and employer sponsorship. With agency reforms on the horizon, now may be the most strategic moment to self-petition for permanent residence through the EB-1A or NIW categories—before the rules change.

At Whitaker & Warburton, we specialize in helping researchers, entrepreneurs, and professionals secure permanent residence through the EB-1 and NIW pathways. As former USCIS attorneys, we understand how to build a petition that stands up to evolving standards.

If you’re considering an EB-1A or NIW petition, filing before the rule takes effect could be critical. Contact us today to evaluate your eligibility and develop a strategy tailored to your credentials and timeline.