Trump’s Return Could Reshape EB-1A Policies: Apply While Approval Rates are High

On October 2, 2024, U.S. Citizenship and Immigration Services (USCIS) introduced updated guidance clarifying the eligibility criteria for EB-1A visas aimed at individuals with extraordinary ability. The updates focus on providing transparency and helping petitioners effectively demonstrate their qualifications. However, as President-elect Donald Trump prepares to take office in January, questions arise about how his administration might alter the interpretation of these regulations.

With the potential for stricter policies under Trump, eligible applicants should consider applying now while the current guidelines—and higher approval rates—remain in effect.

Key Updates in USCIS Guidance

USCIS has clarified specific evidence requirements for EB-1A petitions, making it easier for eligible individuals to meet the criteria. Notable changes include:

• Recognition of Team Awards: Team awards can now be used as evidence under the criterion for lesser nationally or internationally recognized prizes or awards for excellence.
• Past Memberships Considered: The membership criterion now validly includes both current and past memberships in associations requiring outstanding achievements.
• Streamlined Published Material Requirements: Petitioners no longer need to explicitly demonstrate the value of their work through published material, simplifying evidence submission.
• Specificity on Exhibitions: The term “exhibition” now explicitly refers to artistic displays. Non-artistic exhibitions must be supported by comparable evidence.

These changes aim to streamline the application process and ensure consistency in adjudications.

Rising EB-1A Approval Rates

Recent USCIS data reveals an uptick in EB-1A approval rates, surpassing approvals for EB-2 NIW—a rare occurrence. For example, in Q3 FY 2024, the denial rate for EB-1A petitions stood at 30%, compared to a 32% denial rate for EB-2 NIW cases. This shift reflects a favorable environment for EB-1A applicants under the current USCIS framework, providing a strong incentive to apply now.

How a Trump Administration Might Impact EB-1A Policies

During his previous term, Trump’s administration took a restrictive approach to employment-based immigration. With his return to office, we could see similar trends affecting the EB-1A category:

• Narrowed Interpretation of Criteria: The Trump administration might impose stricter standards for demonstrating “extraordinary ability,” leading to higher denial rates.
• Enhanced Evidence Requirements: Petitioners could face increased scrutiny, requiring more robust documentation to meet eligibility thresholds.
• Tougher Compliance Measures: Site visits and audits could rise, adding layers of oversight for both petitioners and employers.

Trump’s administration may adopt a more restrictive interpretation of USCIS regulations, contrasting with the broader and more inclusive approach seen under President Biden.

Strategic Considerations for EB-1A Applicants

Given the current favorable environment and the uncertainty of future policy changes, eligible individuals should act now. Key recommendations include:

• Apply While Approval Rates Are High: With EB-1A approval rates currently exceeding EB-2 NIW approvals, this is an opportune moment to submit your application. The possibility of stricter policies in 2025 makes immediate action even more critical.
• Prepare Comprehensive Documentation: Assemble a strong portfolio of evidence demonstrating your extraordinary ability, anticipating potential shifts toward more rigorous adjudication.
• Stay Informed: Monitor updates from USCIS and legal experts to understand how policy changes might affect your petition.
• Seek Expert Guidance: Consulting with an experienced immigration attorney can help you navigate the complexities of the EB-1A process and maximize your chances of success.

Final Thoughts

USCIS’s recent guidance provides clarity and an opportunity for individuals with extraordinary ability to secure EB-1A classification. However, with the Trump administration poised to take office, potential shifts in policy could reshape the landscape for these petitions.

Given the current favorable trends in approval rates, eligible applicants should consider applying as soon as possible to benefit from the existing guidelines and avoid the risk of heightened scrutiny under a new administration.

Act now to position yourself for success and stay ahead of potential changes. The time to secure your future is now.