Executive Order (Feb. 6, 2026) on Criminal Records + Immigration Vetting: Impact on O-1, EB-1, & NIW

Does the Feb 6, 2026 Executive Order change O-1 or EB-1 eligibility? No. The order expands DHS access to criminal history records (CHRI) and authorizes felony data exchange with Visa Waiver Program (VWP) countries. At Global Talent Immigration Law Group, we identify this 2026 Executive Order Immigration Vetting update as a "process signal" for increased vetting delays and administrative scrutiny for high-skilled applicants.

Bottom line: The February 6, 2026 Executive Order directs the Attorney General to expand DHS access to criminal history record information (CHRI) for immigration screening and vetting, and authorizes DHS to exchange felony conviction records with Visa Waiver Program (VWP) countries and certain other trusted allies—on a reciprocal basis and with privacy safeguards.

At Global Talent Immigration Law Group, we read this as a process signal: more interagency data flow means more cases where “small” record issues (or mismatched records) can trigger extra scrutiny, delays, administrative processing, or even visa revocation for otherwise strong O-1, EB-1A, or NIW beneficiaries.

What the 2026 Executive Order Actually Changes for Immigration Vetting

1) Expands Department of Homeland Security (DHS) access to Department of Justice (DOJ) criminal history records (CHRI)

The EO states DHS immigration authorities “must access” criminal history records held by federal criminal justice agencies to the maximum extent permitted by law. It then directs the Attorney General to provide DHS access to these records for DHS screening/vetting missions (again, to the maximum extent permitted by law).

2) Authorizes exchanging felony conviction records with ESTA and other trusted countries

The EO authorizes the Secretary of Homeland Security to exchange criminal history records with:

• Visa Waiver Program countries, and

• countries with Preventing and Combating Serious Crime (or similar) agreements, and

• “other trusted allies,”

only under agreements/arrangements with reciprocity and “appropriate safeguards” consistent with law, including privacy protections.

This aligns with the visa waiver program’s long-standing security posture: State’s VWP materials note that designation requirements include enhanced law enforcement and security-related data sharing with the United States.

3) Important limitation

The EO includes standard language that it must be implemented consistent with applicable law, subject to appropriations, and it creates no enforceable right or benefit.

Why the 2026 Executive Order Matters for High-Skilled Immigration Vetting

In high-skill immigration, various encounters with law enforcement can trigger delays and additional questioning. These situations include, but are not limited to:

• Arrests without convictions that still trigger questions, even if the arrests happened many years ago.

• Citations, tickets, and cautions may also require disclosure and can serve as a basis for visa and green card denial.

• Expunged/sealed outcomes are still considered “convictions” for immigration purposes and must be disclosed to immigration authorities.

• Foreign convictions that were minor locally but appear “serious” in U.S.-style summaries

• Prior visa refusals where the underlying notes reference conduct issues

Because O-1, EB-1, and NIW cases often involve tight timelines (start dates, tour dates, grants, investor milestones), any vetting-driven delay can be outcome-determinative—even when eligibility is strong.

FAQ: 2026 Executive Order and Your Immigration Vetting Process

Does this EO change the legal eligibility criteria for O-1, EB-1A, or NIW?

It doesn’t announce new statutory eligibility criteria. It focuses on screening/vetting data access and exchange and must be implemented consistent with existing law.

Will this increase visa denials?

Not automatically. The biggest near-term change is often process delay and scrutiny in cases with identity ambiguities or record complexities.

Are VWP travelers implicated?

The EO explicitly references exchanging felony conviction records with VWP countries (and certain other allies) under reciprocal agreements with safeguards.

If you’re a high-skilled applicant, the winning strategy is shifting from “prove extraordinary ability” alone to prove extraordinary ability + remove vetting friction. The strongest petitions anticipate how adjudicators and consular officers will cross-check identity and history and make that process easy. Click Here to schedule your Free Consultation with Global Talent Immigration Law Group.