EB-1A Approval Standards May Shift After Federal Court Decision
Updated: Jul 28
Did EB-1A adjudication just change?
A federal court in Mukherji v. Miller ruled that USCIS’s “final merits determination” framework was unlawfully adopted in that case and ordered USCIS to approve the EB-1A petition. While the decision is significant, it does not automatically replace EB-1A regulations nationwide.
What did the court decide in Mukherji v. Miller?
The U.S. District Court for the District of Nebraska vacated USCIS’s EB-1A denial and ordered USCIS to approve the petition. The court found that USCIS’s use of the “final merits determination” framework was improperly adopted and applied.
What is final merits determination and why struck down?
It is USCIS’s second-step analysis after determining that an applicant satisfies at least three regulatory criteria under 8 C.F.R. § 204.5(h)(3). USCIS used this step to evaluate whether the totality of evidence demonstrated extraordinary ability. The court questioned whether this framework was properly adopted through required administrative procedures.
Do applicants need to stay at top indefinitely?
No. The court rejected the idea that EB-1A requires applicants to continuously remain at the absolute top of their field or constantly accumulate new achievements. However, applicants must still demonstrate extraordinary ability and sustained acclaim based on the applicable regulatory framework.
What should people do after RFE/NOID/denial?
This ruling may provide a potential argument in appropriate cases, especially where USCIS denies a petition after recognizing that the applicant satisfies the required regulatory criteria but relies heavily on the final merits determination. Applicants should evaluate available options, including responses to RFEs/NOIDs or challenges to adverse decisions, based on the specific facts of their case.
A federal court has ruled that one of USCIS’s most common reasons for denying EB-1A Extraordinary Ability petitions, known as the “final merits determination,” may not be lawful.
For applicants who met the required regulatory criteria but were denied based on USCIS’s overall weighing of the evidence, this decision could have a meaningful impact on how EB-1A cases are evaluated going forward.
What Happened
In Mukherji v. Miller, the U.S. District Court for the District of Nebraska overturned a USCIS denial of an EB-1A petition filed by a highly accomplished journalist.
Importantly, the court did not simply send the case back for further review. It ordered USCIS to approve the petition.
The court found that the denial was based on a second-step “final merits” analysis that lacked a valid legal foundation.
Why This Decision Matters
For many years, USCIS has applied a two-step framework when adjudicating EB-1A petitions:
Step One: Determining whether the applicant meets at least three regulatory criteria
Step Two: Conducting a broader and more subjective evaluation of whether the applicant qualifies as an individual of extraordinary ability
The court concluded that this second step does not appear in the EB-1A statute or regulations and was never properly adopted as law.
In reviewing the history of this framework, the court noted that:
Legacy INS proposed a nearly identical two-step rule in 1995
That proposal was explicitly labeled a substantive rule
The rule never became final
USCIS later implemented the same framework without notice-and-comment rulemaking and treated it as internal policy
The court rejected that approach.
Key Takeaways from the Ruling
The decision provides several important clarifications for EB-1A applicants:
The two-step framework was unlawfully adopted under the Administrative Procedure Act
There is no requirement to remain indefinitely at the very top of a field or to continuously produce awards after initial recognition
Meeting more than the required regulatory criteria matters, and USCIS must articulate objective reasons if it finds the evidence insufficient
Courts, not agencies, decide questions of law, particularly following the Supreme Court’s decision in Loper Bright
Because the applicant clearly satisfied the statutory requirements, the court concluded there was nothing further for USCIS to evaluate and ordered approval of the petition.
What This Means for EB-1A Applicants
For applicants facing RFEs, NOIDs, or denials that rely heavily on a “final merits” determination, this ruling provides a strong basis to challenge unsupported or subjective adjudications.
In practice, this means:
Focusing closely on the statutory and regulatory criteria
Questioning reliance on the discretionary second step of the USCIS framework
Preserving arguments that USCIS exceeded its authority
This decision reinforces that EB-1A eligibility is governed by statute and regulation, not by unwritten or evolving agency standards.
If you would like to understand how this decision may affect your case, contact us for an EB-1A evaluation.
