EB-1A & O-1 Alert: Why Meeting 3 Criteria May Not Be Enough for Approval in 2026

A foundational 2010 Ninth Circuit ruling, Kazarian v. USCIS, established that USCIS cannot add requirements to EB-1A criteria that the regulations do not impose. However, the court also clarified that meeting three of ten evidentiary categories is not the end of the inquiry — officers must still assess whether the overall record proves the petitioner has sustained national or international acclaim and stands among the small percentage at the very top of their field. This two-step framework applies to both EB-1A (extraordinary ability immigrant visa) and O-1 (extraordinary ability nonimmigrant visa). For EB-1A, a petitioner can qualify through a major internationally recognized award or by satisfying at least three of ten regulatory criteria. The O-1 categories follow a parallel structure: O-1A for sciences/business/athletics requires three of eight categories, while O-1B for arts or film/TV requires three of six — yet these subcategories carry different legal standards of achievement. The agency itself acknowledged in 1994 rulemaking that 'the evidence submitted by the petitioner is not the standard for the classification, but merely the mechanism to establish whether the standard has been met.' This means identical evidentiary criteria can serve two different O-1B standards, proving that checking the boxes alone cannot resolve eligibility. For practitioners and petitioners, the practical implication is significant: a petition must not only document each criterion but build a narrative demonstrating that the combined record establishes extraordinary ability at the required level. Weak or thin evidence meeting a criterion technically may still fall short in the totality assessment. Applicants considering an EB-1A self-petition or an O-1 should work with counsel to curate evidence that not only checks criteria but collectively tells a compelling story of sustained top-tier recognition — particularly as USCIS scrutiny of employment-based petitions continues to intensify through 2026.