The Department of Homeland Security (DHS) is signaling significant changes ahead for high-skilled immigration to the United States. Our firm has been closely tracking a proposed rule titled “Petition for Immigrant Worker Reforms,”which aims to amend the regulations governing employment-based immigrant petitions, specifically for the highly sought-after EB-1, EB-2, and EB-3 green card categories.

While still in its draft phase with formal publication anticipated in early 2026, the implications for employers and talented individuals seeking permanent residency are substantial. Here’s what you need to know about these potential shifts.

The Core Objective: Modernization, Clarity, and Integrity

DHS’s primary goal with this proposed rule is to modernize outdated provisions, enhance program integrity, and bring greater clarity to the adjudication process for these critical green card categories. This initiative reflects a broader effort to streamline immigration procedures while also addressing concerns about fraud and ensuring the robust application of existing laws.

Key Proposed Reforms and Their Impact:

1. Strengthening Program Integrity and Oversight:

   • Defining “Bona Fide Job Offer”: The rule is expected to introduce a more precise and formalized definition of what constitutes a genuine job offer. This aims to prevent speculative petitions and ensure that foreign workers are sponsored for legitimate, existing positions.

   • Formalizing Site Visit Authority: We anticipate a clear codification and potential expansion of USCIS’s authority to conduct on-site visits to employers filing Form I-140 (Immigrant Petition for Alien Worker).This mirrors existing practices for H-1B visas and would allow USCIS to verify the legitimacy of the petitioning company, the employment details, and other crucial information directly at the workplace.

   • Codifying “Ability to Pay”: The proposal intends to formalize existing administrative guidance regarding an employer’s “ability to pay” the proffered wage. This would solidify the evidentiary standards for demonstrating that a sponsoring employer has the financial capacity to compensate the foreign worker.

2. Enhancing Clarity and Evidentiary Standards:

   • Codifying Existing Policy: A significant aspect of the rule will be to convert various USCIS policy memos and precedent decisions into official, binding regulations. This move is designed to create greater consistency in how petitions are adjudicated across different USCIS officers and service centers.

   • Refining EB-1 and EB-2 Criteria: The proposal specifically seeks to clarify and update the evidence required for:

     • EB-1A (Extraordinary Ability): Expect a more rigorous interpretation of the “sustained national or international acclaim” standard. Applicants may need to present even stronger, more globally recognized evidence to meet the bar.

     • EB-1B (Outstanding Professors and Researchers): The rule will likely provide clearer guidelines on the documentation needed to prove international recognition as outstanding in one’s academic or research field.

     • EB-2 National Interest Waiver (NIW): For those seeking to bypass the PERM labor certification process, the rule will aim to clarify the evidentiary thresholds for demonstrating that the applicant’s work is genuinely in the U.S. national interest.

What This Means for Our Clients:

While the final details are yet to be revealed, the direction of these proposed reforms suggests a future with heightened scrutiny and more stringent evidentiary requirements for high-skilled green card petitions.

• For Employers: Be prepared for potential site visits and ensure meticulous documentation of your company’s existence, the legitimacy of the job offer, and your financial ability to pay the proffered wage. Proactive compliance will be key.

• For High-Skilled Individuals (Especially EB-1 and EB-2 NIW Applicants): Now more than ever, focus on building an exceptionally strong and well-documented case. This means clearly demonstrating your unique contributions, sustained impact, and recognition within your field—ideally with national or international scope. 

• Proactive Planning is Essential: These reforms underscore the importance of working with experienced immigration counsel. Our team at Cohen, Tucker + Ades is committed to helping you understand these evolving requirements and strategize effectively to meet them.

Next Steps

The formal publication of this proposed rule in the Federal Register will open a public comment period, providing an opportunity for stakeholders to voice their perspectives. We will continue to monitor these developments closely and provide updates as they become available.

Stay tuned to our blog for further insights and analysis. If you have questions about how these potential changes might impact your immigration plans or your workforce, please do not hesitate to contact the experienced immigration law team at Cohen, Tucker + Ades.

Sources: 

Department of Homeland Security | Petition for Immigrant Worker Reforms, RIN: 1615-AC85

Disclaimer

The information contained in this blog post is provided by Cohen, Tucker + Ades for general informational purposes only and is not, nor is it intended to be, legal advice. The details regarding the Department of Homeland Security’s (DHS) Notice of Proposed Rulemaking (NPRM) are based on the latest available public information and are subject to change during the formal rulemaking process. A proposed rule is not a final rule, and the actual fees and regulations may differ from those listed above once the final rule is published. You should consult an attorney for advice regarding your individual situation, legal rights, and obligations under the EB-5 program. The use of this information does not create an attorney-client relationship between you and Cohen, Tucker + Ades.