On January 28, 2026, a U.S. federal district court in Nebraska delivered a landmark decision that invalidated the long-standing USCIS practice of applying a separate “final merits” determination in EB-1A extraordinary ability adjudications. The ruling, in Mukherji v. Miller, holds that the agency’s use of a two-step framework, including the “final merits analysis” was implemented unlawfully under the Administrative Procedure Act (APA) because it was created through internal guidance rather than through proper notice-and-comment rulemaking.
This decision has immediate and potentially far-reaching implications for EB-1A practitioners and applicants, especially those whose cases were denied based on final merits reasoning despite meeting the regulatory criteria.
What Is the “Final Merits” Analysis?
Under USCIS policy, EB-1A petitions are evaluated in two stages:
- Regulatory Criteria Review: Does the petition meet at least three of the ten statutory criteria listed in 8 C.F.R. § 204.5(h)(3)?
- Final Merits Determination: Considering all evidence in the record, does the evidence show that the beneficiary has sustained national or international acclaim and is among the small percentage at the top of their field?
This two-step approach stems from Kazarian v. United States Citizenship and Immigration Services, a Ninth Circuit case from 2010 that USCIS later codified in policy memoranda. It became a dominant analytical framework, but also one criticized for introducing subjectivity and insufficient procedural safeguards into EB-1A adjudications.
What the Court Ruled ?
In Mukherji, the applicant challenged a USCIS EB-1A denial where the agency conceded the petitioner met more than three regulatory criteria but denied the petition based on its “final merits determination.” The court found that:
- USCIS’s final merits requirement was a substantive adjudicative standard that effectively added requirements beyond the regulations.
- Because it was implemented via internal guidance (policy manuals and memoranda) rather than through formal notice-and-comment rulemaking, it was unlawful under the APA.
- The denial was vacated, and the court ordered USCIS to approve the petition rather than simply remanding for further review.
This remedy, a court-ordered approval, underscores the court’s view that the flawed procedural adoption of final merits was not just a technical error but one that materially affected the outcome.
Why This Matters for EB-1A Strategy ?
1. Applicants Who Met the Criteria but Lost on Final Merits Now Have Leverage
Many strong EB-1A cases are denied not because they lack qualifying evidence under the ten criteria but because adjudicators conclude the totality of evidence doesn’t show sufficient sustained acclaim. Before this ruling, practitioners had limited avenues to challenge such denials internally; AAO appeals often simply re-weighed the evidence under the same approach. This ruling changes that dynamic.
2. Litigation Becomes a Viable Option
For cases where USCIS expressly acknowledged the regulatory criteria were met but denied based solely on final merits, federal litigation under the APA may now be a realistic strategy. While this is a single district court ruling and not binding nationwide precedent, it provides persuasive authority that many practitioners can cite in litigation and motions.
3. USCIS Policy Could Change — But Not Immediately
USCIS has not yet published formal policy guidance in response. Absent an agency appeal or new rulemaking, adjudicators may continue to apply existing practices, but attorneys can now reference Mukherji in briefs, reopening arguments about procedural due process and regulatory interpretation.
Practical Takeaways for Attorneys and Petitioners
1. Document Your Case Thoroughly:
Even with strong evidence of meeting criteria, well-framed narratives that connect achievements to continued national or international impact remain important.
2. Review Denials Carefully:
Denials citing only final merits despite acknowledging qualifying criteria may now be strong candidates for judicial review.
3. Explore Litigation Early:
Administrative motions (Motions to Reconsider/Reopen) remain available, but in select cases, an APA lawsuit in federal court might offer a path to approval.
4. Monitor Policy Developments:
This ruling puts pressure on USCIS to either appeal or formally revise its policy on final merits, creating a shifting regulatory landscape that practitioners should watch closely.
Bottom Line
The Mukherji decision represents a major procedural win for EB-1A practitioners and applicants, one that could reshape how extraordinary ability petitions are adjudicated and challenged. While the fundamental statutory standards for EB-1A eligibility have not changed, this ruling underscores that procedural fairness and proper rulemaking matter in visa adjudications.
visa iQ will continue to monitor developments, including potential appeals and policy changes from USCIS.
Need guidance on an EB-1A petition or a recent denial?
This decision may open new opportunities for applicants who previously met the EB-1A criteria but were denied under USCIS’s “final merits” analysis. If you’d like to discuss your case, review a denial, or explore next steps, visa iQ is here to help
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