What Is EB-1A "Final Merits" Analysis, and Why Is a Federal Court Case Challenging It?

Key Statutes

• EB-1A, Extraordinary Ability: INA § 203(b)(1)(A); 8 CFR § 204.5(h)
• Regulatory criteria and evidentiary framework: Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)
• Final merits framework challenged: Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb. Jan. 28, 2026)
• Administrative Procedure Act rulemaking requirement: 5 U.S.C. § 553
• Agency deference standard applied: Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
• USCIS adjudicative standard: USCIS Policy Manual, Vol. 6, Part F, Ch. 2

What Final Merits Determination Actually Is

EB-1A eligibility rests on the extraordinary ability standard set out in INA § 203(b)(1)(A) and 8 CFR § 204.5(h). The regulation itself lists ten specific types of evidence, things like major awards, published material about the petitioner in professional or major media, judging the work of others, original contributions of major significance, or a high salary relative to others in the field, and states that a petitioner who submits at least three of them, or a single major internationally recognized award, has provided qualifying evidence.

For years, USCIS did not stop there. Under the framework that grew out of Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), adjudication became a two-step process. Step one is the counting stage: does the evidence submitted satisfy at least three of the ten regulatory criteria, evaluated under a preponderance of the evidence standard, without adjudicators layering on requirements the regulation doesn't actually contain. Step two is what USCIS calls the final merits determination: a separate, more holistic review of the entire record to decide whether, taken as a whole, it shows sustained national or international acclaim and places the petitioner among the small percentage at the very top of their field.

That second step is where most of the real controversy lives. It is not tied to any specific checklist. It asks an adjudicator to form a qualitative judgment about whether the petitioner is genuinely one of the best in their field, based on the totality of the record, even after that same record has already been found to satisfy three or more of the specific criteria Congress and the regulation actually list.

Where Kazarian Came From, and What It Actually Held

Kazarian did not invent the final merits concept out of nothing. Poghos Kazarian, a physicist, had his EB-1A petition denied by USCIS and the denial upheld by the district court, on the theory that meeting the letter of the regulatory criteria wasn't enough if the petitioner wasn't independently deemed extraordinary. On review, the Ninth Circuit held that USCIS could not add extra, unwritten requirements onto individual criteria at the counting stage. If a petitioner's evidence objectively matched what a criterion asked for, that criterion was satisfied, full stop, without an adjudicator importing a stricter, unstated standard into the analysis.

But the Ninth Circuit's opinion also left the door open to something like a second-stage merits review, and USCIS built its two-step adjudicative framework, including the final merits determination as it exists today, largely out of that opening, formalized through the agency's Policy Manual and internal guidance rather than through formal rulemaking. That distinction, guidance versus rulemaking, is exactly what Mukherji v. Miller went on to challenge nearly sixteen years later.

Mukherji v. Miller: The Case That Challenged the Framework

The petitioner in Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb. Jan. 28, 2026), was Anahita Mukherji, a journalist who filed an EB-1A petition and, according to USCIS's own determination, satisfied five of the ten regulatory criteria under 8 CFR § 204.5(h)(3), well above the three required. USCIS denied the petition anyway, at the final merits stage, concluding that the record as a whole did not establish sustained national or international acclaim.

Mukherji challenged the denial under the Administrative Procedure Act in the U.S. District Court for the District of Nebraska. Rather than simply arguing that USCIS weighed the evidence incorrectly, the challenge attacked the legal foundation of the final merits determination itself: USCIS had built and applied a mandatory, binding second-step adjudicatory framework through internal policy guidance, never subjecting it to the notice-and-comment rulemaking process the APA requires for rules of this kind under 5 U.S.C. § 553.

On January 28, 2026, the court agreed. Relying substantially on the framework set out in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which eliminated the old practice of deferring to an agency's own interpretation of ambiguous statutes, the court found nothing in the INA or its implementing regulations that authorizes the kind of freestanding, subjective second-step merits review USCIS had been applying. The court also faulted USCIS for shifting its adjudicative approach over time without adequately explaining the change. The remedy went further than a typical remand. Rather than sending the case back to USCIS for another look, the court vacated the denial outright and ordered the agency to approve Mukherji's petition.

USCIS's Response: An Appeal, Then a Withdrawal

USCIS initially appealed the Nebraska ruling to the U.S. Court of Appeals for the Eighth Circuit. In June 2026, it withdrew that appeal. Immigration attorneys who tracked the case, including Cyrus Mehta, who represented parties in related litigation, read real significance into the withdrawal, but significance of a particular kind. Had USCIS pursued the appeal and lost before the Eighth Circuit, an intermediate appellate court, generally regarded as more conservative, would have issued a binding, precedential ruling limiting the agency's authority to impose adjudicative frameworks that aren't grounded in the regulatory text. By withdrawing instead, USCIS avoided that outcome, leaving the district court's decision intact for Mukherji's individual case, but without creating binding precedent for anyone else.

What Mukherji Changes, and What It Doesn't

It is worth being direct about the limits of a single district court decision. Mukherji does not eliminate the final merits determination as a matter of nationwide law. USCIS has not rescinded the framework, has not amended the Policy Manual to remove it, and there is no indication the agency intends to stop applying it in other EB-1A and EB-1B cases. Petitioners filing today should still expect USCIS to conduct exactly the kind of holistic, second-stage review Mukherji challenged, including in cases where three or more criteria are clearly met.

What has changed is the legal landscape petitioners and their attorneys can point to when a denial rests on that second stage. Mukherji is now persuasive authority, not binding precedent, in litigation and in advocacy before USCIS itself. It provides a concrete, recent example of a federal court finding the final merits framework legally unsupported under the post-Loper Bright standard, and USCIS's decision not to defend that finding on appeal removes one of the few opportunities that framework has had to be tested and validated at a higher court. Attorneys representing petitioners in litigation now have a genuinely useful data point: a court that looked closely at the APA question, ruled against USCIS, and watched the agency decline to fight for a contrary ruling on appeal.

Why This Matters Beyond One Case

The practical stakes here are significant because of how often the final merits stage actually drives denials. It is common for USCIS to acknowledge, in a denial notice, that a petitioner met three, four, or even five of the ten regulatory criteria, only to deny the case anyway on the theory that the "totality of the evidence" doesn't establish sustained acclaim at the very top of the field. Because that second-stage standard has never been reduced to specific, testable criteria the way step one has, it has functioned as something close to an unreviewable discretionary veto, even though USCIS Policy Alert PA-2025-16 confirmed in August 2025 that EB-1A adjudication, unlike NIW adjudication, is supposed to be non-discretionary altogether.

Mukherji highlights the tension in that combination directly. If EB-1A adjudication is genuinely non-discretionary, a legally unmoored final merits step that can override an otherwise successful step-one showing sits uneasily next to that principle. Whether future courts, particularly at the appellate level, ultimately agree with the Nebraska court's reasoning remains an open question. What is no longer true is that the final merits determination is legally unquestioned.

What This Means for Someone Filing or Litigating an EB-1A Case Now

For a petitioner preparing a new EB-1A filing, the practical guidance hasn't changed as dramatically as the headlines might suggest. Build the record to satisfy step one clearly, with evidence that objectively matches at least three regulatory criteria without relying on an adjudicator's generosity, and build it to independently support step two as well, with a coherent, well-documented narrative showing genuine sustained acclaim, not just a checklist of qualifying items. Assuming the final merits stage no longer applies would be a real mistake; USCIS is, by every indication, still applying it.

For someone who has already been denied at the final merits stage, particularly where USCIS's own denial notice concedes that multiple criteria were met, Mukherji is a reason to take a harder look at whether litigation is worth evaluating. The specific fact pattern that made Mukherji strong, a clear step-one showing followed by a denial resting on a vague, shifting, or inadequately explained final merits analysis, is exactly the pattern worth reviewing closely with an attorney experienced in APA litigation, since deadlines and strategic choices in that kind of challenge are genuinely time-sensitive.

FAQ

What is the difference between the two steps of EB-1A adjudication?
Step one counts whether the evidence submitted satisfies at least three of the ten regulatory criteria under 8 CFR § 204.5(h)(3). Step two, the final merits determination, is a broader, more subjective review of whether the full record shows sustained national or international acclaim placing the petitioner at the very top of their field.

Did Mukherji v. Miller eliminate the final merits determination for all EB-1A cases?
No. The ruling applies to that individual case, and USCIS's withdrawal of its appeal left the decision intact without creating binding nationwide precedent. USCIS has not announced any plan to stop using the final merits framework in other cases.

Why did USCIS withdraw its appeal instead of continuing to fight the ruling?
The reasoning wasn't publicly explained by the agency, but immigration attorneys who followed the case suggest USCIS may have preferred to avoid a binding, unfavorable appellate ruling from the Eighth Circuit, which would have limited the agency's authority far more broadly than a single district court decision does.

What role did Loper Bright play in the Mukherji decision?
Loper Bright Enterprises v. Raimondo eliminated the prior practice of courts deferring to an agency's own interpretation of ambiguous statutes. Without that deference, the Nebraska court examined whether anything in the INA or its regulations actually authorizes the final merits determination and concluded that USCIS had adopted it through internal guidance rather than through the formal rulemaking the APA requires.

If I was denied at the final merits stage after meeting three or more criteria, should I consider litigation?
It may be worth evaluating, particularly if the denial relied on a vague or inconsistently applied standard after USCIS acknowledged you met multiple regulatory criteria. This is a fact-specific, time-sensitive decision that should be reviewed with an attorney familiar with APA challenges to immigration denials.

Should I still expect a final merits review when I file a new EB-1A petition?
Yes. Despite Mukherji, USCIS continues to apply its established two-step framework, including the final merits determination, in current adjudications. Petitions should be built to withstand both stages of review.

What This Means for You

The final merits determination remains part of how USCIS adjudicates EB-1A cases today, but it no longer sits beyond legal challenge. Mukherji v. Miller shows that a well-documented step-one showing, paired with a denial that rests on a vague or unexplained final merits analysis, can be a genuinely viable basis for federal court review. Whether you're preparing a new petition or evaluating a denial you've already received, understanding both stages of this framework, and the current, still-developing legal challenges to it, is essential to building the strongest possible case.

If you're preparing an EB-1A petition or have received a final merits denial and want to discuss your options, contact the Law Offices of Shawn S. Sedaghat at (818) 382-3333.

This article discusses general legal principles. It does not describe any specific client or matter. Nothing here constitutes legal advice or creates an attorney-client relationship. USCIS adjudication practices and the legal status of the final merits determination framework are actively developing; confirm current requirements before relying on this article.

Shawn S. Sedaghat is an immigration attorney at Law Offices of Shawn S. Sedaghat focused on deportation defense, immigration appeals, asylum, family-based immigration, and employment-based immigration. He is the firm's founder and principal attorney and has more than 30 years of experience handling U.S. immigration matters.