The Art of the Petition: Navigating Uncertainty in EB-1, O-1, and NIW Under Trump Administration 2.0
Introduction
With the inauguration of President Donald J. Trump for a second term, immigration policy has once again shifted towards a more rigid, merit-focused framework. In his inaugural address, Trump made clear his administration’s vision for a meritocratic society, declaring:
"We will forge a society that is colorblind and merit-based."
For highly skilled foreign nationals seeking extraordinary ability (EB-1, O-1) and national interest waiver (NIW) petitions, this shift presents both opportunities and intensified challenges.
Success in today’s immigration landscape is not unlike the art of negotiation in high-stakes business and political deals—a subject central to Trump’s own The Art of the Deal. Just as successful deal-making requires strategic positioning, careful planning, and preempting counterarguments, so too does crafting a winning immigration petition. Those who understand the adjudicatory framework, anticipate scrutiny, and construct petitions that address potential weaknesses before they arise will be best positioned to secure approvals in an increasingly competitive and restrictive environment.
The Changing Immigration Landscape: Key Challenges Ahead
1. EB-2 Retrogression and Increased Demand for EB-1 Petitions
EB-2 remains in unprecendented retrogression, particularly for high-demand countries, leaving many foreign nationals without immediate access to green cards.
As a result, many highly qualified individuals who might have pursued an NIW petition under EB-2 are now shifting towards EB-1 in search of a faster path to permanent residency.
This increased demand for EB-1 petitions will likely lead to stricter adjudications as USCIS officers work to filter out all but the most clearly qualified applicants.
2. The Flight to EB-1 Concurrent Filings Due to TPS Termination
With the termination of multiple Temporary Protected Status (TPS) programs, many TPS holders are seeking alternative pathways to lawful permanent residency.
Since EB-1 remains current, a surge in concurrent I-140 and I-485 filings is expected as applicants attempt to secure adjustment of status while visa numbers are still available.
This influx will strain USCIS processing capacity, leading to longer adjudication times, increased scrutiny, and a rise in RFEs as officers attempt to control case volume.
3. The "Merit-Based" Approach Will Tighten Adjudications for EB-1, O-1, and NIW
While Trump’s merit-based rhetoric aligns with the foundational principles of EB-1, O-1, and NIW categories, his first administration saw a record increase in RFEs and denials for these cases.
Expect greater scrutiny on subjective evidentiary factors, such as expert letters and media recognition, with a preference for hard metrics such as patents, high-impact citations, and major international awards.
Moreover, it is expected that the updates to the USCIS Policy Manual introduced under the Biden Administration, which broadened the evidentiary framework for EB-1 adjudications, will be subject to rescission or reinterpretation under new guidance issued by the Trump Administration. These revisions, which expanded the scope of qualifying EB-1 achievements, included:
Recognition of team and youth awards as a basis for demonstrating extraordinary ability, rather than limiting qualifying accolades to individual distinctions;
Performance in a leading or critical role within a division or department rather than requiring an applicant’s leadership to extend across an entire organization; and
A relaxation of the evidentiary standard requiring that published material focus exclusively on the applicant, permitting consideration of materials where the applicant is a significant subject but not the sole focus.
Given the Trump Administration’s historical approach to employment-based immigration, which emphasized a strict and narrow interpretation of regulatory criteria, it is likely that new USCIS guidance will reinstate more restrictive adjudication standards. This would effectively eliminate the expanded recognition of collective achievements, reinstate a higher evidentiary threshold for demonstrating leadership roles, and revert to requiring that published material unequivocally center on the petitioner.
The Art of Petition Development: Winning Strategies to Minimize RFEs and Secure Approvals
Much like structuring a complex political or business deal, crafting an immigration petition requires anticipation, strategic presentation of evidence, and preemptive problem-solving.
1. Well Structured and Strategic Evidence Presentation
USCIS officers are required to adjudicate cases using category-specific sub-regulatory guidance—therefore, aligning evidence directly with the requisite criteria in the correct order of interpretation helps facilitate efficient review and favorable decision making by the adjudicator.
✔️ For EB-1 and O-1 Applicants:
Preemptively addressing areas of subjectivity by supporting expert and experiential opinions with preexisting concrete evidence, such as industry rankings, financial impact, or widespread adoption of the applicant’s work.
✔️ For NIW Applicants:
Due to EB-2 visa retrogression, there has been a marked pivot away from acknowledgment of one’s contributions made through the normal course of employment and towards documentation of thought leadership, industry recognition, and influence. Therefore, petitions must be crafted to emphasize not only the applicant’s technical expertise but also their ability to shape and advance their field at a broader level. This shift requires a more strategic approach to evidentiary presentation—highlighting independent recognition, high-impact publications, invited talks, advisory roles, and leadership in major industry initiatives rather than merely detailing employment history and job responsibilities.
2. Reducing RFEs Through Stronger Expert Letters
Expert letters must go beyond generic endorsements and provide quantifiable data on the applicant’s impact.
More specifically, in the EB-1 leading or critical role context, USCIS adjudicators have meticulously scrutinized submitted letters to determine whether the applicant’s roles and responsibilities are sufficiently articulated to distinguish them from similarly situated professionals within the qualifying organization. This heightened evaluation framework means that generalized job descriptions or vague attestations of importance are no longer sufficient; instead, petitioners must demonstrate with specificity and independently verifiable evidence. Accordingly, the meticulous development of qualifying evidentiary materials is particularly paramount for researchers, athletes, and artists, as their contributions must be articulated with precision to underscore their distinction and impact within their respective fields..
3. Crafting RFEs Out of the Process
The most effective petitions eliminate the possibility of an RFE by proactively addressing potential concernsbefore they arise.
Best Practices include:
Identification and knowledge of past trends in similar cases and strategically counteract those concerns in the initial filing.
Incorporating substantiated third-party endorsements and corroborative third-party evidence, such as press coverage, industry rankings, and comparative analyses, to validate claims without leaving room for discretionary questioning.
Applying Occam’s Razor to EB-1/EB-2/O-1 Petition Development: Clarity Over Complexity
In the realm of EB-1 and EB-2 immigration petitions, Occam’s Razor—the principle that the simplest solution is often the best—serves as a guiding philosophy for effective and strategic case preparation. A well-structured petition should convey extraordinary ability or national importance with precision, avoiding unnecessary complexity or redundant documentation that could dilute the core argument. While exhaustive evidence is essential, excessive analysis or an overabundance of materials can overwhelm adjudicators and obscure the most compelling aspects of the case. The goal is to present a clear, logically sequenced narrative that allows the reviewing officer to immediately grasp the petitioner’s qualifications without unnecessary cognitive burden. By strategically selecting only the most impactful evidence and expert testimonials, petitioners can minimize Requests for Evidence (RFEs) while maximizing the likelihood of approval—ensuring that the strength of the case speaks for itself.
At Fraser Immigration Law PLLC, our firm specializes in constructing and strategically developing EB-1, O-1, and NIW petitions that withstand intense adjudication scrutiny. If considering filing in these respective categories, contact our firm today to develop a winning strategy tailored to the evolving U.S. immigration system.