A Federal Court Questions USCIS’s Final Merits Determination in EB-1A Cases: What This Means for Applicants
2026-02-01, BY wegreened
A recent federal court decision has raised important questions about how U.S. Citizenship and Immigration Services (USCIS) evaluates EB-1 extraordinary ability petitions. This ruling does not immediately change USCIS policy nationwide, but it offers valuable guidance and a strong legal argument, particularly for applicants facing a Notice of Intent to Deny (NOID). Below we explain the case, its limitations, what the USCIS Policy Manual actually says, and how this decision may still help EB-1A (Aliens of Extraordinary Ability) and EB-1B (Outstanding Professors or Researchers) applicants today.
1. Overview of the Case
In Mukherji v. Miller, the U.S. District Court for the District of Nebraska reviewed a USCIS denial of an EB-1A immigrant petition filed by a professional journalist. USCIS acknowledged that the petitioner had satisfied five of the ten regulatory criteria required under 8 C.F.R. § 204.5(h)(3), but it nevertheless denied the case at what it described as the final merits determination stage.
The petitioner challenged the denial under the Administrative Procedure Act (APA), arguing that USCIS had applied a legal standard not found in the Immigration and Nationality Act (INA) or the relevant regulations. The court agreed and held that USCIS unlawfully adopted the two-step adjudication framework and the final merits determination without conducting proper notice-and-comment rulemaking as required for substantive rules. The court found USCIS’s use of the framework arbitrary and capricious, vacated the denial, and ordered USCIS to approve the petition.
2. What the USCIS Policy Manual Says
USCIS’s own Policy Manual confirms that officers use a two-step analysis when reviewing EB-1 petitions.
In EB-1A adjudications officers first determine whether the evidence submitted meets the regulatory criteria by applying a preponderance of the evidence standard to either a one-time major internationally recognized award or at least three of the ten regulatory criteria.
In the second step, the final merits determination, officers are instructed to evaluate all the evidence in the record together in its entirety to decide whether the petitioner has sustained national or international acclaim and is one of the small percentage at the top of the field. This step requires officers to consider all potentially relevant evidence to determine whether the totality of the evidence shows eligibility.
For EB-1B Outstanding Professors and Researchers, the Policy Manual similarly describes a two-step analysis in which the first step evaluates whether the evidence meets at least two of the six regulatory criteria and the second step evaluates all evidence together in the final merits determination to decide if the beneficiary is internationally recognized as outstanding in a specific academic area.
3. Why the Court Found the Final Merits Determination Problematic
The court focused on the legal question of whether USCIS could impose a substantive final merits standard through policy guidance rather than through formal rulemaking. Under the INA and its implementing regulations, eligibility for EB-1A and EB-1B is defined by the regulatory criteria and the statutory standards in the law. The court held that adding a separate legal requirement without notice-and-comment rulemaking violates the APA.
4. Important Limits of the Decision
It is important for applicants to understand what this case does and does not do. Even though the decision critiques USCIS’s use of the two-step framework, it was issued by a federal district court, not a circuit court of appeals or the Supreme Court. As a result, USCIS is not legally required to immediately stop applying the two-step approach nationwide, and officers are likely to continue following the Policy Manual until or unless USCIS formally changes its policy.
USCIS adopted the two-step approach after the Ninth Circuit’s decision in Kazarian v. USCIS and codified it in the Policy Manual. No comparable formal update has yet rescinded that framework following the Mukherji decision.
Practically speaking, EB-1A and EB-1B petitions should still be prepared under the existing two-step approach unless and until USCIS amends the Policy Manual.
5. Practical Impact for EB-1A and EB-1B Applicants
EB-1A
In everyday adjudications, most EB-1A denials occur at the first step of adjudication, where USCIS finds that the petitioner has not satisfied at least three of the regulatory criteria. Denials based solely on the final merits determination, after a petitioner has clearly satisfied the regulatory criteria, are comparatively fewer. As a result, even if USCIS eventually adopts the court’s reasoning, the decision may not significantly impact the majority of EB-1A outcomes.
EB-1B
The potential impact isgreater for EB-1B cases. In EB-1B adjudications, petitioners often satisfy at least two of the evidentiary criteria, but denials frequently rest on subjective assessments in the final merits determination, such as whether the beneficiary is internationally recognized as outstanding in a specific academic area. For that reason, challenges to the final merits determination are especially relevant in EB-1B cases, and this decision provides helpful legal support in those disputes.
6. Why This Case Is Especially Useful at the NOID Stage
In practice, final merits determination issues most often arise in a Notice of Intent to Deny (NOID) rather than a Request for Evidence (RFE). When a NOID questions whether the totality of the evidence demonstrates that the petitioner is among the small percentage at the top of the field (for EB-1A) or internationally recognized as outstanding (for EB-1B), this decision can be cited to argue that USCIS is applying an extra-regulatory standard and that the final merits analysis lacks clear statutory or regulatory grounding.
Although the decision is not binding, it can be used as persuasive authority in:
-NOID responses
-Administrative appeals
-Federal court challenges
7. Key Takeaways for EB-1A and EB-1B Applicants
This decision does not eliminate the two-step EB-1 framework overnight, and USCIS officers are still likely to follow the Policy Manual for now. EB-1A and EB-1B petitions should continue to address both regulatory criteria and final merits concerns. The decision is most valuable as a legal tool in NOID responses, appeals, and litigation. It may be particularly impactful in EB-1B cases, where subjective final merits challenges occur more frequently.
Final Thoughts
This ruling represents a significant judicial critique of how USCIS has evaluated EB-1 petitions for more than a decade. While its immediate effect may be limited, it strengthens future challenges to discretionary denials and reinforces the principle that immigration eligibility standards must come from law or formally adopted regulations, not internal policy alone.
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