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EB-1A Approval Standards May Shift After Federal Court Decision

  • Matthew Kolodziej
  • Feb 10
  • 2 min read

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.

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