EB-1A & NIW Update #1: No RFE Required Before Denial, Citation Limits, and AAO Trends
- Mounia El-Arar
- 5 hours ago
- 7 min read
Immigration policy is changing rapidly, and even experienced attorneys are being forced to adjust their filing and response strategies in real time. For that reason, I am adding a biweekly update to Immigration, Innovation & AI highlighting crucial USCIS policy changes, recent AAO decisions, and practical updates affecting EB-1A and EB-2 NIW. My goal is to explain what these updates actually mean when we are preparing a petition, anticipating potential challenges, or responding to USCIS under a rapidly approaching deadline.
This first update addresses a significant USCIS policy change affecting RFEs and NOIDs, along with two recent AAO decisions showing why citation numbers, publication metrics, and media coverage may not be enough to establish EB-1A eligibility.
1. USCIS May Deny a Petition Without Issuing an RFE or NOID
On August 5, 2026, USCIS issued updated guidance restoring officers’ discretion to deny an immigration benefit request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).
The policy applies immediately to benefit requests pending or filed on or after August 5, 2026. According to USCIS, a request may be denied without an RFE or NOID when the applicant or petitioner fails to provide required initial evidence or when the evidence submitted with the filing does not establish eligibility for the requested benefit.
This is an important change for EB-1A and EB-2 NIW petitioners. Applicants should no longer assume that USCIS will issue an RFE and provide another opportunity to supplement an incomplete or underdeveloped record. The initial petition should be prepared as though it may be the petitioner’s only opportunity to establish eligibility. Put plainly, an RFE should never be treated as a guaranteed second chance to finish building the case. That safety net may no longer arrive.
The updated guidance also allows officers to assign RFE response periods based on the nature of the evidence requested and the circumstances of the case. Although the maximum RFE response period remains 84 days, typically 87 days when the three additional days for service by mail apply, USCIS is not required to provide the maximum period.
I recently received an EB-1A RFE with only 30 days to respond, and several colleagues have reported similarly shortened deadlines. The goal is always to submit a complete petition that establishes eligibility at the time of filing. Still, even a thoroughly prepared petition may receive an RFE raising unexpected questions, challenging the weight of the evidence, or requesting additional corroboration.
A 30-day deadline creates significant pressure for petitioners and their attorneys. Responding may require updated expert letters, clarification from employers, additional citation analysis, records from third-party organizations, or evidence addressing concerns that could not reasonably have been anticipated before filing. The challenge is not simply drafting the legal argument; it is obtaining and organizing responsive evidence from parties outside the attorney’s or petitioner’s control.
With some RFE response periods now being reduced from the typical 87 days to only 30, attorneys are left wondering how much further these deadlines can realistically be compressed. NOIDs already provide only about 30 days to respond.
The practical lesson is straightforward: prepare every petition for approval on the initial record while also anticipating how USCIS might challenge it. Before filing, identify potential vulnerabilities, preserve the supporting records for each claimed criterion, and consider what additional corroboration may be available if USCIS raises an unexpected concern.
The new policy also reinforces several important filing practices:
Establish every claimed EB-1A criterion through primary, independently verifiable evidence and explain when primary evidence is unavailable.
Address final merits in the initial petition instead of waiting for USCIS to raise it.
Establish the underlying EB-2 qualification separately from the three Dhanasar prongs in an NIW petition.
Treat the stated RFE or NOID deadline as controlling and submit one complete response.
The full USCIS announcement, Policy Alert PA-2026-05, and updated USCIS Policy Manual Guidance are available online.
2. Citations Do Not Automatically Establish a Contribution of Major Significance
A recent non-precedent AAO decision provides another important lesson for EB-1A researchers and professionals who rely on publications and citation evidence.
In In Re: 40640733, decided July 7, 2026, the petitioner was a soil-science researcher who claimed three EB-1A criteria: judging the work of others, authorship of scholarly articles, and original contributions of major significance. USCIS credited judging and authorship but concluded that the petitioner had not established original contributions of major significance. The AAO dismissed the appeal.
The petitioner submitted research articles, recommendation letters, evidence of research funding, citation records, journal-impact information, and comparative citation data that she argued placed three papers among the top 10% most-cited articles in the broader Environment/Ecology field.
Still, the AAO identified several deficiencies. This is what makes the decision useful. On paper, the petitioner had many of the statistics commonly associated with a strong research profile: respected journals, comparatively high citation numbers, expert letters, and funded research. The problem was not the absence of accomplishments. It was the missing connection between those accomplishments and demonstrable field-level impact.
First, the comparison was not sufficiently tailored to the petitioner’s actual field. The petitioner compared citation performance in soil science against data for the broader field of Environment/Ecology without adequately establishing that the broader benchmarks applied equally to the soil-science subfield.
Second, the AAO distinguished the reputation of a journal from the influence of the individual author or article. Publication in Biochar, Chemosphere, Agronomy, or another respected journal may support the originality and quality of the research, but it does not automatically establish that an individual article made a major contribution to the field.
Third, the AAO emphasized that citation counts require qualitative context:
“A high citation number might show that others in the field have noticed the Petitioner’s work.”
The AAO explained that citation frequency alone did not establish that the work had significantly impacted or advanced the field. The citing articles referenced the petitioner’s work as an example of existing research or as part of a general overview, but did not discuss it in a manner demonstrating a contribution of major significance.
This distinction is easy to overlook. Citation counts are objective and convenient, but this decision focuses on the harder question: What happened because other researchers cited the work?
Finally, the recommendation letters described valuable research but did not provide sufficiently specific examples of widespread implementation, replication, or field-level influence. The AAO emphasized that the record reflected the views of a limited number of solicited references rather than objective recognition by the field as a whole.
This decision does not mean that citations are unimportant. It means that citation evidence should answer more than one question.
A strong original-contributions argument should distinguish between:
Evidence that the work was published and cited;
Evidence that other researchers relied upon or built upon it;
Evidence that institutions or companies adopted or implemented it; and
Evidence that it changed practices, products, standards, methodologies, or subsequent research.
For technology and AI professionals, that may include evidence of independent implementation, integration into commercial products, incorporation into technical standards, downstream open-source adoption, replication by other organizations, or expert testimony explaining exactly how the contribution changed later work.
The strongest citation analysis is therefore not simply a total count or percentile comparison. It identifies who cited the work, why they cited it, what they did with it, and how that use demonstrates broader influence.
3. Published Material May Satisfy a Criterion but Still Fall Short at Final Merits
A separate non-precedent AAO decision issued on June 25, 2026, illustrates the distinction between satisfying the initial evidentiary requirements and establishing sustained acclaim at final merits.
The petitioner, an executive in the pharmaceutical and medical-nutrition fields, initially established the published-material and leading-or-critical-role criteria. On appeal, the AAO also found that she satisfied the high-salary criterion, giving her the three criteria required to proceed to final merits. The AAO nevertheless dismissed the appeal because the record as a whole did not establish sustained national or international acclaim or place her among the small percentage at the top of her field.
The petitioner submitted five articles about her and her work. Two only quoted or mentioned her, while three focused significantly on her and her position. The AAO agreed that the published material demonstrated some national acclaim and recognition, but observed that the articles appeared in professional health publications, not mainstream media, and were published between 2022 and 2025. The AAO concluded that this coverage did not demonstrate sustained acclaim or a “career of acclaimed work in the field.”
This is also why I am cautious about treating a collection of recently published articles as a complete EB-1A strategy. The articles may satisfy the published-material criterion, but USCIS can still ask at final merits whether the coverage demonstrates sustained recognition across the beneficiary’s career.
For technology executives, founders, and AI professionals, a strong published-material record should ideally demonstrate:
Independent coverage extending across multiple years and continuing through the present;
Substantive discussion of the beneficiary and the beneficiary’s specific work;
Coverage from reputable publications supported by objective readership and circulation evidence; and
A connection between the coverage and other recognition, including awards, speaking invitations, industry adoption, or leadership opportunities.
A concentrated group of articles published during a limited period may satisfy the published-material criterion but still carry limited weight at final merits. Petitioners should therefore present media coverage as part of a broader chronology showing continued recognition by the field, not as an isolated collection of articles.
The common thread running through these developments is that evidence cannot simply exist - it must prove something. A citation must demonstrate influence. Published material must demonstrate meaningful and sustained recognition. Employer documentation must establish individual attribution and impact. And, under the new RFE policy, those connections should be made clearly in the initial filing because petitioners may not receive another opportunity to explain them.
Until the next update, stay informed and stay prepared!
Comments