EB-1A or O-1A for Founders: Which Should You File First?

Many founders ask me the same thing: "Can we skip the O-1A and file the EB-1A directly?" It used to depend mostly on how strong your record looked the day we met. In 2026, the better question is different. It is less about which visa and more about the order, and whether one body of evidence can support both.

Where EB-1A cases are being lost

To qualify for the EB-1A, you must meet at least three of ten regulatory criteria, or show a major internationally recognized award. USCIS then adds a second step. Even if you meet the criteria, an officer looks at your whole record and decides whether you have sustained acclaim and sit at the very top of your field.

For years, that second step mostly confirmed approvals. Starting in 2025, it became the place where petitions were denied. Officers often said achievements were too recent or acclaim was not sustained, even after agreeing the criteria were met.

What Mukherji v. Miller changed, and what it did not

In January 2026, a federal court in Nebraska took on that second step in Mukherji v. Miller. USCIS agreed the petitioner met five of the ten criteria, then denied her anyway for lack of sustained acclaim. The court found that USCIS had created the two-step test through internal guidance instead of formal rulemaking, had not acknowledged it was changing long-standing policy, and had applied a recency expectation that is not in the statute. The court ordered the petition approved.

Here is what happened next. USCIS appealed, then in June 2026 asked the Eighth Circuit to dismiss its own appeal. The petitioner kept her approval, but no appeals court set a rule. Shortly after, the USCIS Administrative Appeals Office issued a non-precedent decision that rejected the Mukherji reasoning. In plain terms, USCIS avoided a ruling it might have lost, and it is still using the two-step test.

Mukherji is helpful, but it is not something to build a filing strategy around.

What this means for founders

1. Founder success does not fit neatly into the criteria. A valuation, a funding round, or an accelerator's selectivity is not a regulatory criterion. Each has to be translated. A large round alone is not an original contribution of major significance. It has to be shown as independent proof that others in your field have adopted or built on your work. Accelerator selectivity can support an awards or critical-role argument, but only when the acceptance rate is documented and not just claimed.

2. A founder's career can look "unsustained" on paper. Big achievements packed into a few years, followed by an exit or a pivot, can read as acclaim that did not last. If your best press clusters around one moment two years ago, that is exactly the profile that draws this objection.

3. The order of filings matters most. If your record spans years, has independent corroboration, and translates clearly, the EB-1A can be the most efficient path, filed with the second-step issues already answered. For many other founders, the O-1A is a better starting point, not a consolation prize. Its criteria overlap heavily with the EB-1A, so we can build your evidence so every exhibit does double duty. Time in O-1A status also turns a snapshot into the continuous timeline a reviewer wants to see. And because filing an immigrant petition does not by itself prevent approval of an O-1A, we may be able to pursue both at the same time.

Raise objections early

If a denial adds requirements that are not in the regulations, such as "recent" achievements, unbroken acclaim, or an undefined "pinnacle," that objection needs to be made early and on the record with USCIS. Raised too late, it can be lost before a federal judge ever sees it.

The bottom line

The EB-1A is still open to founders. What has changed is that planning matters more than filing. The most valuable conversation happens before the first filing, not after the first denial. Is your record durable enough to go straight to the EB-1A? If not, what do the next two years in O-1A status need to produce?

If you are a founder weighing these options, contact my office to talk through your timeline.

This post is general information, not legal advice. Every case is different.