A new federal court decision is poised to reshape how strong EB‑1A extraordinary ability cases are litigated — especially where USCIS concedes that multiple criteria are met but still denies at the “final merits” stage.
For years, USCIS has relied on the Ninth Circuit’s decision in Kazarian v. USCIS (2010) to apply a two‑step framework to EB‑1A petitions. Now, in Mukherji v. Miller (D. Neb. Jan. 28, 2026), a federal district court has vacated an EB‑1A denial and ordered approval, sharply criticizing USCIS’s use of that framework and its subjective “final merits determination.”
BACKGROUND: WHAT KAZARIAN DID
Kazarian v. USCIS is a landmark Ninth Circuit case that created a mandatory two‑part analysis for EB‑1A extraordinary ability petitions:
- Part 1 – Counting the Criteria:
USCIS must first determine whether the petitioner meets at least three of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3), such as:
- Major or lesser nationally or internationally recognized prizes or awards
- Memberships in associations requiring outstanding achievements
- Published material about the beneficiary
- Original contributions, authorship of scholarly articles, judging, leading/critical roles, etc.
- Part 2 – Final Merits Determination:
If at least three criteria are satisfied, USCIS must then conduct a qualitative “final merits determination” and decide whether the evidence, taken as a whole, shows:
- Sustained national or international acclaim; and
- That the person is truly among the very small percentage at the top of their field.
Crucially, Kazarian also held that:
- USCIS cannot add extra‑regulatory requirements at the initial counting stage.
- The agency may not raise the evidentiary bar by demanding proof beyond what the regulations actually require when deciding whether a criterion is “met.”
In theory, Kazarian was meant to prevent USCIS from importing vague, heightened standards into step one, while allowing a more holistic review at step two.
WHAT HAPPENED IN MUKHERJI V. MILLER?
In Mukherji, USCIS:
- Conceded that the petitioner met five of the ten EB‑1A criteria — far more than the required three.
- Nevertheless denied the petition at the second step, asserting that the petitioner lacked “sustained national or international acclaim” in the final merits determination.
The federal district court rejected that approach and:
- Vacated USCIS’s denial; and
- Remanded with instructions to approve the EB‑1A petition.
The court held that USCIS’s use of the two‑tiered Kazarian framework — particularly the subjective “final merits determination” — violated the Administrative Procedure Act (APA) as applied in this case. According to the court:
- USCIS relied on internal guidance that was never properly adopted through notice‑and‑comment rulemaking.
- The agency failed to provide a clear, reasoned explanation for its denial.
- The decision, in the court’s words, was “arbitrary and capricious.”
WHY THIS DECISION MATTERS
The Mukherji ruling directly targets several patterns that EB‑1A applicants and practitioners have been seeing for years.
1. USCIS Cannot Quietly Change the Rules
The court reaffirmed a core principle of administrative law: agencies may change policy — but not silently.
- If an agency changes course, it must:
- Acknowledge that it is changing position; and
- Offer a reasoned explanation for the new approach.
The court found that USCIS did neither here. Instead, it effectively used internal guidance to alter how EB‑1A standards are applied at the final merits stage, without following the required process.
2. “Final Merits” Denials Need Specific, Legitimate Reasons
Mukherji speaks directly to a now‑familiar EB‑1A pattern:
- USCIS agrees that the petitioner meets three or more regulatory criteria;
- Then denies at the final merits stage with broad, conclusory language about lacking “sustained acclaim;”
- Without stating:
- What legal or evidentiary standard was applied,
- What specific evidence is missing, or
- Why the existing record is not enough.
The court made clear that this is not permitted under the APA:
- If a reviewing officer fails to spell out specific and legitimate reasons for denial, the decision is arbitrary and capricious.
This gives practitioners a powerful tool to challenge EB‑1A denials that are long on rhetoric and short on concrete analysis.
3. No Requirement to Stay “Indefinitely” at the Top
USCIS often frames the final merits analysis as if an EB‑1A beneficiary must remain perpetually at the top of their field.
Mukherji squarely rejected that idea:
- The statute does not require that an individual “stay indefinitely at the top of their field.”
- The court found nothing in the statutory scheme to support such a reading.
This language undercuts a recurring rationale in denials, especially where USCIS downplays a strong record because of perceived dips or changes over time.
4. Court Criticism of USCIS’s Use of the Two‑Step Framework
Importantly, Mukherji does not overrule Kazarian itself — Kazarian remains binding Ninth Circuit precedent.
However, the district court concluded that:
- USCIS’s adoption and application of the two‑step system in this case did not comply with the law,
- Undermining the agency’s reliance on that framework to deny the petition.
This opens the door to arguing that, even if Kazarian is valid, how USCIS is using the final merits determination in practice may violate both the regulations and the APA.
5. Post‑Loper Bright: Courts Decide the Law
The decision also reflects the Supreme Court’s ruling in Loper Bright, which substantially limited Chevron deference.
- The court emphasized that questions of law are for the judiciary, not the agency, to finally decide.
- That further narrows USCIS’s ability to rely on unexamined internal interpretations of the EB‑1A statute and regulations.
WHAT THIS DECISION DOES — AND DOES NOT — CHANGE
It is important to be precise about the immediate impact:
- What it does not do:
- It does **not** automatically change EB‑1A adjudications nationwide.
- USCIS has not yet revised its Policy Manual or guidance.
- Kazarian remains on the books.
- What it does do:
- Provides strong, recent authority for challenging EB‑1A denials where:
- USCIS acknowledges that the petitioner meets three or more criteria;
- The denial is grounded in a vague, shifting, or unsupported “final merits” analysis; and
- The decision fails to clearly explain what more was required and why.
- Offers a roadmap for RFEs, NOIDs, AAO appeals, and federal district court complaints grounded in the APA.
For high‑achieving professionals who have already met or exceeded the minimum number of EB‑1A criteria, Mukherji is a significant development. It underscores that while USCIS may conduct a holistic final merits review, it cannot do so with secret rules, unexplained standards, or conclusory dismissals of a strong record.
We will be watching closely to see whether USCIS modifies its written policies or day‑to‑day adjudication practices in response to this decision — and whether other federal courts follow Mukherji’s lead in reining in abusive uses of the “final merits determination” in EB‑1A cases.