Higher Standards, Stronger Evidence: The Growing Need for Clear, Strong, and Verifiable Evidence in EB-1A and EB-2 NIW Cases

Non-citizens with advance parole may feel anxious about re-entering the U.S. | Unsplash

By Helen Partlow, Managing Attorney at Waypoint Immigration USA

When applying for an EB-1A (Extraordinary Ability) or EB-2 NIW (National Interest Waiver) green card, your petition must meet the "preponderance of the evidence" standard. But what does that really mean?

Think of this as the “more likely than not” rule. Unlike the “beyond a reasonable doubt” standard used in criminal cases, which requires near certainty, preponderance of the evidence is a much lower burden of proof. In simple terms, this means that you do not need to prove something with absolute certainty, just a claim is more likely true than not, even if it is just 51% versus 49%.

For immigration petitions, this means the evidence you submit must clearly support your qualifications and credibility. If your evidence leans in your favor, even slightly, you meet the standard.

For years, the preponderance of the evidence standard has been the guiding principle for EB-1A and EB-2 NIW petitions. While this standard remains in place, recent trends indicate that USCIS is applying a much higher level of scrutiny to these applications. This shift was further reinforced by the latest USCIS Policy Manual update, which emphasizes the importance of clear, objective, and verifiable evidence when assessing qualifications.

Petitioners are now facing a more rigid interpretation of the regulatory criteria, with adjudicators looking beyond just meeting the minimum requirements. As an example, for EB-2 NIW applicants, proving that an endeavor is in the national interest has become more complex. USCIS officers are now looking for tangible, real-world impact metrics beyond letters of recommendation. The ability to demonstrate that research or innovation has been implemented, patented, or widely adopted carries far more weight than a simple statement of potential benefit. Officers are also scrutinizing whether the petitioner’s work aligns with government initiatives or pressing national needs, such as technological advancements, public health improvements, or economic development.

As scrutiny has increased, so too has the number of Requests for Evidence (RFEs) and denials. Petitioners who would have likely been approved a year ago are now receiving RFEs questioning the significance of their achievements. Recommendation letters, while still useful, are not sufficient on their own unless they contain detailed, specific examples of how the petitioner’s work has shaped their field (and even then, USCIS often uses blanket statements to disregard them, implying that they are not up to standard). USCIS is also placing greater emphasis on whether EB-1A applicants have achieved sustained national or international acclaim rather than just a history of isolated success. This means petitioners must not only demonstrate past achievements but also show continued contributions and ongoing recognition in their field.

In light of these challenges, it is more important than ever for applicants to approach their petitions strategically. Rather than relying on subjective statements or general support letters, petitioners should provide strong, quantifiable evidence that clearly illustrates their impact. This includes well-documented statistics, independent validation of their work, and clear explanations of their role in industry advancements. The presentation of evidence must also be highly organized, making it easy for adjudicators to follow the logic and see how the petitioner meets the eligibility criteria.

Given these shifts, petitioners must stay proactive in maintaining their credentials. Those applying for EB-1A should ensure they have recent publications, speaking engagements, or leadership roles in addition to a history of such items, to demonstrate that their influence is ongoing. EB-2 NIW applicants should work to provide concrete examples of how their work is impacting the U.S. beyond just their employer, whether through patents, government funding, or direct implementation of their innovations.

While the legal standard may not have changed on paper, it is clear that the bar for approval has been raised. Understanding these trends and preparing accordingly can make the difference between approval and rejection. By presenting well-documented, compelling, and independently verifiable evidence, petitioners can improve their chances of success in this increasingly stringent review environment.