Federal Court Invalidates USCIS EB-1A Final Merits Framework

January 28, 2026 – EB-1A Extraordinary Ability Petitions

On January 28, 2026, the U.S. District Court for the District of Nebraska issued a landmark decision that significantly impacts how EB-1A (Extraordinary Ability) immigrant petitions must be adjudicated by USCIS.

In Mukherji v. Miller, the Court ruled that USCIS’s long-standing practice of denying EB-1A petitions at the so-called “final merits determination” stage is unlawful and violates the Administrative Procedure Act (APA). The Court vacated the denial and ordered USCIS to approve the EB-1A petition.

Background: The Kazarian Two-Step Test

The EB-1A immigrant visa category is reserved for individuals of extraordinary ability in the sciences, arts, education, business, or athletics. Under existing regulations, a petitioner may qualify by demonstrating either a one-time major international award or by meeting at least three out of ten regulatory criteria listed in 8 C.F.R. § 204.5(h)(3). Since 2010, USCIS has relied on Kazarian v. USCIS (9th Cir. 2010) to apply a two-step adjudication framework in EB-1A cases:

1. Whether the petitioner meets at least three regulatory criteria, and

2. A discretionary “final merits determination”, often used to deny cases despite satisfying the criteria.

However, the Nebraska federal court found that this second step was never properly enacted through notice-and-comment rule making as required by federal law.

Key Findings of the Court

In Mukherji v. Miller, No. 4:24-cv-03170 (D. Neb. Jan. 28, 2026), the court held that USCIS’s adoption of this second-step “final merits determination” was unlawful.

The Court held that:

- USCIS effectively created a substantive, legislative rule when it adopted the two-step framework, despite previously recognizing that such a change would require notice-and-comment rule making.

- The agency never completed formal rule making under the APA, even though a similar proposal was classified as a substantive rule in a 1995 Notice of Proposed Rule making that was never finalized.

- USCIS failed to acknowledge or adequately explain its departure from nearly twenty years of prior adjudicatory practice, rendering the policy change arbitrary and capricious.

- The “final merits determination” is not found in the statute or regulations, and its nationwide adoption through policy memoranda exceeded the agency’s delegated authority.

- Relying on recent Supreme Court precedent emphasizing independent judicial review of agency legal interpretations, the court concluded that the two-tiered system was invalid “at its inception.”

- USCIS lacked statutory authority to impose the “final merits determination” as an additional requirement;

- The policy was adopted without proper rule making, in violation of the APA;

- USCIS cannot add substantive eligibility standards through internal policy memoranda;

- Extraordinary ability does not require continuous awards or recognition year after year;

- The agency’s denial was arbitrary, capricious, and ultra vires.

As a result, the Court set aside the denial and remanded the case with instructions to approve the EB-1A petition.

Importantly, the court did not merely remand the case for further adjudication. USCIS had already determined that the petitioner satisfied five of the ten regulatory criteria, well beyond the minimum required. The court held that there was no lawful basis remaining for denial and ordered USCIS to approve the I-140 petition.

The court also rejected USCIS’s reasoning that extraordinary ability requires continuous awards or acclaim year after year, noting that neither the statute nor the regulations impose such a requirement.

Why This Decision Matters

This ruling has broad implications for individuals whose EB-1A petitions were:

- Denied after meeting three or more regulatory criteria, and

- Rejected solely or primarily at the final merits determination stage.

- It directly challenges USCIS’s long-standing reliance on the Kazarian two-step framework in EB-1A adjudications.

- It reinforces that agencies may not impose additional eligibility standards through policy guidance without proper rulemaking.

- It may provide a basis for challenging past EB-1A denials that relied on a “final merits determination” despite meeting the regulatory criteria.

- While the decision is binding only within the District of Nebraska, its reasoning may be persuasive in other jurisdictions and could influence future litigation and agency practice.

For many applicants denied since 2010, this decision may support:

- Filing a new EB-1A petition under the correct legal standard, or

- Challenging the denial in federal court through an APA lawsuit.

This decision represents one of the strongest judicial rejections to date of USCIS’s Kazarian-based adjudication framework. USCIS may appeal the decision, and further guidance or regulatory action could follow. However, for petitioners whose EB-1A cases were denied primarily at the “final merits” stage, this decision represents an important opportunity to reassess legal options, including motions to reopen or federal court challenges.

How Merit Law LLP Can Help

Every EB-1A case is fact-specific, and strategic analysis is essential.

If your EB-1A petition was denied despite meeting the regulatory criteria, Merit Law LLP can evaluate whether:

- A new EB-1A filing, or

- Federal litigation challenging USCIS’s decision,

is the most effective path forward for your case.