Quick answer: The June 2026 Visa Bulletin pushed the India EB-2 final action date back 10.5 months, to September 1, 2013. India EB-1 also retrogressed, to December 15, 2022. Both categories now face higher RFE and denial rates than two years ago, so switching categories will not fix a backlog problem by itself. It can still make sense if your profile genuinely fits EB-1A’s extraordinary ability standard, because EB-1A draws from a separate per-country allocation than EB-2.
What just happened
The Department of State released the June 2026 Visa Bulletin in May, and USCIS confirmed it would use the Final Action Dates chart for employment-based filings that month. For India, the news was bad on both ends of the high-skilled pipeline. The EB-2 final action date retrogressed 10.5 months, from a more recent cutoff to September 1, 2013. The EB-1 final action date for India retrogressed too, from April 1, 2023 in May to December 15, 2022 in June.
The reason behind the EB-2 move is structural, not a sign that USCIS suddenly tightened scrutiny that month. The State Department confirmed that the fiscal year 2026 annual limit for visa issuance in the India EB-2 category had been reached, and no more immigrant visas would be issued in that category until the next fiscal year starts on October 1. Demand from India in EB-2 has outpaced the per-country allocation for years. Every year the bulletin runs into the same wall, and every year it pushes the cutoff date further back to manage the queue.
If you filed your EB-2 NIW I-140 with a priority date after September 1, 2013, you cannot file your I-485 adjustment of status this month, regardless of when your I-140 was approved. That is the practical sting in this bulletin. Approval of the underlying petition does not get you a green card on its own. Visa number availability does.
Why EB-1A and NIW are both harder to win right now
Visa number scarcity is one problem. Adjudication difficulty is a separate one, and it has been getting worse independent of the bulletin.
NIW denial rates overtook approval rates for the first time on record in the fourth quarter of 2025. RFE rates for NIW petitions reached roughly half of all regularly processed cases in early 2026. On the EB-1A side, approval rates had declined to approximately 66.6% in the third quarter of fiscal year 2025, down from higher levels earlier that year. EB-1A processing time has also stretched to as long as 21 months, partly because USCIS consolidated all EB-1A adjudication into one service center operation instead of splitting the work between Texas and Nebraska.
One detail worth sitting with: USCIS has started using AI tools in its own RFE drafting process. The practical result reported by immigration attorneys is longer RFEs that are less coherent, not more precise. A vague or templated petition does not get a sharp, specific RFE in return. It gets a long one that misreads parts of the record. That raises the cost of any ambiguity in your original filing, because you cannot count on the adjudicator catching what you meant. You need the petition to say it directly the first time.
The Mukherji ruling, and what it actually changes
In January 2026, a federal court in the District of Nebraska decided Mukherji v. Miller. The petitioner had satisfied five of the ten EB-1A criteria, well past the three required under 8 CFR 204.5(h)(3), but USCIS denied the case anyway at the “final merits determination” stage, the second and more subjective step of the Kazarian framework. The court vacated the denial and ordered USCIS to approve the petition outright.
The reasoning matters more than the outcome. The court held that USCIS adopted that second-step review through internal policy memos rather than through the formal notice-and-comment rulemaking the Administrative Procedure Act requires. Citing the Supreme Court’s Loper Bright decision, the court found the agency cannot impose adjudicatory standards that are not tied to the actual statute and regulations. The same ruling also rejected a “recency” requirement USCIS had been applying, one that has no textual basis in a statute written about sustained acclaim, not recent acclaim.
This is a real and useful precedent. It is not a blanket guarantee. One district court ruling does not bind USCIS nationwide, and the agency can still appeal or simply continue applying the same approach to petitioners who do not have the resources to fight it in federal court. What it tells you is that a petition meeting three or more criteria with strong evidence has a legal argument behind it if USCIS denies on subjective grounds anyway. It does not lower the bar for what you need to prove. It raises the cost to USCIS of denying a well-documented case.
EB-1A vs EB-2 NIW for India filers, June 2026
| EB-1A | EB-2 NIW | |
|---|---|---|
| India final action date (June 2026) | December 15, 2022 | September 1, 2013 |
| Approval rate (recent quarters) | ~66.6% | ~54.0% |
| RFE rate | Rising, but lower than NIW | ~50% of filings |
| Typical I-140 processing time | Up to 21 months (or 15 days with premium processing) | Standard timeline, or 45 days with premium processing |
| Self-petition allowed | Yes | Yes |
| Core legal standard | Extraordinary ability, 3 of 10 criteria + final merits review | National importance, well-positioned to advance it, balance favors waiver (Dhanasar) |
| Typical petition writing cost (non-attorney) | From $3,000 | From $2,500 |
The India EB-1 cutoff sits nearly nine years ahead of the EB-2 cutoff. That gap is the entire argument for why some EB-2-eligible Indians are now taking a serious look at EB-1A, separate from any adjudication trend.
Should you actually switch? Three situations
You have a strong record and haven’t filed NIW yet. If your work shows original contributions, peer recognition, or measurable impact in your field, and you have not committed to an NIW filing, EB-1A is worth evaluating now. The backlog gap is real and it is not closing this fiscal year.
You already have an approved NIW I-140 and you’re waiting on the backlog. Switching categories does not fix a per-country visa number shortage. Your I-140 approval already established your priority date. What sometimes helps here is upgrading the strength of a second filing if your profile has grown since the first one, not chasing a different category for its own sake.
Your profile is borderline. A faster bulletin movement is not a reason to file a thin petition faster. It is a reason to make sure the petition you do file can survive the RFE rates and final merits scrutiny described above. A denied or RFE’d case costs you more time than a slower, stronger filing would have.
What’s actually failing in petitions right now
Attorneys who track RFE patterns point to the same recurring gaps: recommendation letters that read like generic templates instead of technical evidence statements, achievements that exist in the record but are never explicitly mapped to the criterion they are supposed to satisfy, and evidence narratives that leave the adjudicator to do the connecting work themselves. Given that USCIS adjudicators are now working with AI-assisted tools that produce longer but less coherent RFEs, an unclear petition does not get clarified by the review process. It gets punished by it.
This is where the writing itself becomes the determining factor, separate from whether your underlying achievements qualify. A software engineer with five strong original contributions and a generic, copy-paste recommendation letter set will often do worse than a similar engineer whose letters map each contribution to a specific EB-1A criterion or Dhanasar prong in plain, specific language.
This is the exact gap Green Card For Alien has worked in since 2015, drafting petition letters, recommendation letters, and cover letters only for EB-1A and EB-2 NIW self-petitioners, nothing else. The process runs on a 24-hour initial profile review, recommendation letters delivered in 3 to 5 business days, and a full petition package usually ready within four weeks. Pricing starts at $2,500 for EB-2 NIW and $3,000 for EB-1A, a flat scope quoted after profile review rather than attorney hourly billing. You write nothing alone and you still sign and file the petition yourself.
The team works only on cases with real, documented achievements, declining profile-building or embellishment, which matters more now that adjudicators are scrutinizing evidence narratives more closely than they did two years ago. If you want to see how this plays out in practice, the case studies cover approvals across engineering, scientific research, and the arts, several without an RFE at all, and the why-choose-us comparison breaks down where this differs from attorney-led drafting on cost and turnaround. The testimonials describe cases that started at even odds and closed in four to seven months. If you want to model your own backlog timeline against EB-1A and NIW data before deciding anything, the free calculators are open to use without filling out a form, and the blog tracks adjudication trends like the ones in this article as they develop.
Frequently asked questions
Does the India EB-2 backlog affect EB-1A too? Yes, but less severely. India EB-1’s final action date retrogressed to December 15, 2022 in the June 2026 bulletin, while EB-2 retrogressed to September 1, 2013. EB-1A draws from a separate allocation and currently has a shorter wait for India filers, though both categories can move in either direction in future bulletins.
Can I switch from EB-2 NIW to EB-1A in the middle of my case? Yes. You can file a separate I-140 under EB-1A at any point, including while an NIW case is pending or approved. Switching does not cancel your existing priority date or filing. Whether it helps depends on whether your achievements meet the higher extraordinary ability standard, not on the bulletin alone.
Does the Mukherji v. Miller ruling mean USCIS has to approve my case if I meet three criteria? No. The ruling addressed one specific denial and found that USCIS cannot apply certain extra-statutory standards, including an unsupported “recency” requirement, at the final merits stage. It strengthens the legal argument for petitioners who meet multiple criteria with solid evidence. It does not guarantee approval and does not bind USCIS in cases outside that court’s jurisdiction.
How long does it take to draft an EB-1A petition versus get it approved? Drafting recommendation letters typically takes 3 to 5 business days each, with a full petition package ready in about four weeks once all letters are finalized. Approval timing is separate and depends on USCIS processing, currently up to 21 months for standard processing or as fast as 15 days with premium processing, plus any wait created by visa bulletin availability.
Is EB-1A or NIW better for an Indian software engineer in 2026? It depends on your evidence, not your job title. EB-1A requires extraordinary ability with sustained acclaim across at least three of ten defined criteria. NIW requires showing your work has national importance and that you’re well positioned to advance it. Many software engineers qualify for either depending on what they can document: original contributions and recognition favor EB-1A, while broader national-interest impact favors NIW. A profile review against both standards is the only reliable way to know which fits.
This article provides general information based on published USCIS data and recent case law. It is not legal advice. For guidance on your specific situation, consult a qualified immigration attorney.