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EB-1A / EXTRAORDINARY ABILITY
A federal district court struck down USCIS’s decades-old “final merits determination” as
procedurally invalid — and now the agency has quietly walked away from its own appeal.
Here’s what practitioners and petitioners need to know.
For years, applicants pursuing the EB-1A extraordinary ability green card have encountered a
frustrating pattern: meet three, four, even five of the ten regulatory criteria — and still get denied. The
reason? A second layer of review, the so-called “final merits determination,” inserted by USCIS
through internal policy memos and applied as a mandatory gate that nowhere appears in the statute or regulations governing the category.
On January 28, 2026, a federal district court in Nebraska called that out directly. In Mukherji v. Miller,
the court vacated USCIS’s denial of Dr. Anahita Mukherji’s EB-1A petition and ordered the agency to
approve it — holding that the two-step adjudicatory framework was adopted in violation of the
Administrative Procedure Act’s notice-and-comment requirements.
USCIS appealed. Then, this month, it withdrew that appeal.
The district court’s ruling now stands. And while it doesn’t rewrite the law overnight, it reshapes the
litigation and advocacy landscape in meaningful ways.
BACKGROUND
The EB-1A category requires a petitioner to demonstrate “extraordinary ability” through either a major
one-time achievement or evidence satisfying at least three of ten regulatory criteria: awards, published material, judging, original contributions, and so on.
In 2010, following the Ninth Circuit’s decision in Kazarian v. USCIS, the agency codified a two-step adjudicatory process through internal guidance:
THE KAZARIAN TWO-STEP
• Step 1: Does the petitioner’s evidence satisfy at least three of the ten criteria? (The threshold question)
• Step 2: Even if yes — looking at the totality of the record, does the petitioner demonstrate extraordinary
ability and “sustained national or international acclaim”? (The “final merits determination”)
The problem is that Step 2 was never promulgated as a rule. It emerged from policy memos — not
public rulemaking. And in practice, it gave adjudicators broad, uncabined discretion to deny petitions that facially satisfied the regulatory criteria, often by importing requirements the regulations don’t contain: achievement “recency,” “indefinite top status,” or year-over-year continuous recognition.
From the Court’s Findings — Mukherji v. Miller
USCIS conceded that Dr. Mukherji satisfied five of the ten criteria — well above the required three. The
agency nonetheless denied her petition at the final merits stage, asserting her achievements were “too
old” and that she had failed to maintain “indefinite top status” with unbroken annual recognition. The
court found no regulatory basis for either requirement and rejected them both.
THE RULING
The court’s holding rests on two foundations.
First, the APA procedural argument: the final merits determination framework was enacted through
internal agency guidance — not the notice-and-comment rulemaking the Administrative Procedure
Act requires for binding agency policy. That alone renders it procedurally invalid as applied.
Second, Loper Bright: the 2024 Supreme Court decision that eliminated Chevron deference means
courts no longer defer to USCIS’s interpretation of ambiguous statutory language. The agency can no
longer claim judicial deference for a framework it invented through internal memos. If the regulation
doesn’t authorize the second step, courts will say so.
“The court’s point was simple: if the agency’s adjudicatory structure isn’t grounded in statute or regulation — and wasn’t adopted through proper rulemaking — courts in the post-Loper Bright era are not obligated to accept it.”
WHY THE APPEAL WITHDRAWAL MATTERS
This is where the strategic picture gets interesting. USCIS appealed to the Eighth Circuit — one of the
more conservative federal appellate courts in the country. Then it walked away.
The most plausible explanation: institutional risk management. Had USCIS proceeded and lost in the
Eighth Circuit, it would have created binding appellate precedent undermining the final merits
framework across that jurisdiction, with persuasive weight elsewhere. Withdrawing the appeal
preserves the agency’s freedom to continue applying the two-step framework in other cases — while
avoiding a published circuit opinion it can’t undo.
That calculation tells you something about how confident USCIS is in the legal defensibility of its own
framework.
CRITICAL LIMITS
WHAT HAS NOT CHANGED
• USCIS has not revised its Policy Manual and has not formally abandoned the final merits determination
framework
• The ruling is binding only in this individual case — not nationwide, and not at the appellate level
• The Kazarian framework itself is not invalidated — the court’s critique targeted the second step only
• Adjudicating officers will continue applying the two-step framework until a formal policy change is made
• Petitions should still be built for holistic review — the final merits step isn’t going away on its own
PRACTICAL IMPLICATIONS
New Petitions
Still build for holistic review. But anchor your evidence arguments in the
regulatory criteria text — so that if denied, the Mukherji argument is clean and
ready.
RFEs and NOIDs
If USCIS demands “recency,” “indefinite top status,” or continuous annual
recognition — these are fabricated requirements Mukherji directly rejected.
Push back hard and cite the case as persuasive authority.
Prior Denials
Clients denied at the final merits stage who met three or more criteria should
consult counsel about federal court litigation or refiling with a Mukherji-informed
argument.
O-1A Parallel
The Kazarian two-step is applied in O-1A adjudications too. The persuasive
value of Mukherji extends to O-1A RFE responses where USCIS imposes
unregulated requirements.
THE BIGGER PICTURE
Mukherji v. Miller doesn’t exist in isolation. It’s part of a broader post-Loper Bright reckoning in which
federal courts are taking a harder look at agency-created adjudicatory frameworks that stretch
beyond statutory and regulatory text. USCIS built the final merits determination without going through
APA rulemaking — and courts are no longer obligated to accept that as legitimate agency
interpretation.
The agency had a chance to defend its framework before an appellate court and chose not to. That
silence is significant.
For petitioners who have long faced the frustrating reality of meeting every regulatory criterion and
still being denied, Mukherji provides the most serious doctrinal challenge to that practice in the EB-1A
era. Whether it becomes a catalyst for formal policy change — or simply a tool for targeted litigation
— depends on how practitioners use it.
We are closely monitoring this development and its implications for pending and future
extraordinary ability petitions. If you received an EB-1A denial at the final merits stage, or are
evaluating whether to refile or litigate, we encourage you to reach out for a case assessment.
This post is for informational purposes only and does not constitute legal advice. The information contained herein reflects publicly available legal developments as of June 2026. Consult a qualified immigration attorney regarding your specific circumstances.
