TL;DR: On January 28, 2026, a Nebraska federal court ruled that USCIS unlawfully created its “final merits determination” test for EB-1A extraordinary ability petitions. The court found this framework violated the Administrative Procedure Act because USCIS never followed required notice-and-comment rulemaking procedures. While binding only on the specific case, the decision exposes legal vulnerabilities in how USCIS has denied EB-1A petitions for over a decade and may strengthen challenges to similar denials.
Understanding the Decision
In Mukherji v. Miller, a federal district court rebuked U.S. Citizenship and Immigration Services over its EB-1A extraordinary ability petition handling. The plaintiff, an Indian journalist, satisfied five of the ten regulatory criteria, well above the three required. Despite this, USCIS denied her petition based on a “final merits determination.”
The court held that USCIS lacked legal authority to impose this additional requirement.
The “Final Merits Determination” Framework
For over a decade, USCIS has used a two-step process for EB-1A petitions. First, USCIS determines whether an applicant meets at least three of ten regulatory criteria. Second, in the “final merits determination,” USCIS conducts a holistic review to assess whether the applicant truly represents the “small percentage at the very top” of their field.
The problem? This second step appears nowhere in immigration statutes or regulations. The court found USCIS created a substantive requirement without following proper legal procedures.
The Court’s Legal Reasoning
The court found USCIS violated the Administrative Procedure Act in two ways. First, when agencies create rules with “the force and effect of law,” they must follow notice-and-comment rulemaking. USCIS never did this for the “final merits determination,” implementing it through internal policy memoranda without public input.
Second, USCIS acted arbitrarily and capriciously. The agency initially recognized the “final merits determination” required formal rulemaking, but later reversed course without explanation. Under Loper Bright (which eliminated Chevron deference), courts must independently review questions of law. The court found USCIS’s approach legally deficient.
Notably, the court ordered USCIS to approve the petition rather than simply remanding for reconsideration.
What This Means for EB-1A Applicants
Important Limitations
This is a district court decision binding only on the plaintiff. It does not create precedent for other EB-1A petitions. USCIS may appeal the ruling or simply approve this specific petition while continuing to apply the “final merits” test to everyone else. For the decision to become binding precedent, the Eighth Circuit Court of Appeals would need to affirm it, and even then, it would only bind cases within that circuit.
Practical Implications
Despite these limitations, the decision provides powerful support for challenging EB-1A denials, particularly when USCIS acknowledges the regulatory criteria are met but denies based on subjective assessments.
For individuals pursuing EB-1A classification: document thoroughly, as the regulatory criteria remain the foundation. Address the “final merits” analysis directly in your petition. For strong cases denied on questionable grounds, this decision provides a roadmap for legal challenges.
The Broader Context
EB-1A approval rates have reportedly declined significantly, with some sources indicating drops from historical norms of 60-70% to as low as 30%. The discretionary “final merits” analysis has become a frequent basis for denial, even for accomplished professionals meeting multiple regulatory criteria. This decision challenges the legal foundation of this practice.
What This Means Going Forward
The Mukherji v. Miller decision represents a meaningful legal challenge to USCIS’s EB-1A adjudication framework. While it doesn’t invalidate the “final merits determination” nationwide, it exposes serious legal vulnerabilities in the agency’s approach and strengthens applicants’ position when facing arbitrary denials.
The big takeaway: meeting the regulatory criteria matters, documentation quality is paramount, and legal recourse exists when denials appear disconnected from the evidence. Working with experienced immigration counsel is critical for building strong cases and, when necessary, challenging unfair outcomes.
If you are beginning your U.S. immigration journey, Berardi Immigration Law is here to help. Click this link to schedule a consultation with our award-winning team of immigration attorneys, and we will be happy to discuss all your options and pathways.
Frequently Asked EB-1A Questions
Q: Does this decision mean my EB-1A petition will be approved more easily?
Not directly. This decision is binding only on the specific case. USCIS continues applying the two-step framework to all other petitions. However, the decision may strengthen legal challenges to denials based on questionable “final merits” reasoning, particularly when applicants clearly meet the regulatory criteria.
Q: What should I do if USCIS denied my EB-1A petition at the “final merits” stage?
Review the denial notice carefully to understand USCIS’s reasoning. If you met the regulatory criteria but were denied based on vague or inconsistent “final merits” analysis, consult an experienced immigration attorney. Options may include filing a motion to reopen, an administrative appeal, or federal litigation.
Q: What evidence addresses the “final merits determination” most effectively?
Focus on demonstrating sustained acclaim through objective, verifiable evidence: independent citations of your work, widespread adoption of your contributions, major awards with clear selection criteria, respected media coverage, and expert letters from well-regarded professionals with specific examples and data supporting your field-leading status.
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