A Nebraska Federal Court Questions USCIS’s Vague EB-1A “Final Merits” Denial: A Meaningful Shift in EB-1A Green Card?
When Anahita Mukherji’s EB-1A green card petition was denied despite USCIS agreeing she met five of the ten criteria, a Nebraska federal court took notice. On January 28, 2026, the U.S. District Court for Nebraska vacated the denial and ordered USCIS to approve her case. This rare step, in Mukherji v. Miller, directly challenges USCIS’s controversial two-step “final merits” review in EB-1A Extraordinary Ability cases.
USCIS had denied Mukherji’s petition at the second stage, concluding she lacked “sustained national or international acclaim” despite meeting all regulatory criteria. The court held that USCIS’s use of this subjective final merits determination violated the Administrative Procedure Act.
This decision is being hailed by EB1 experts as a potential game-changer. It forces USCIS to explain why it denies an EB-1A when the criteria are conceded. As one commentator noted, agencies may “change their existing policies as long as they provide a reasoned explanation”, a standard USCIS failed here.
In practical terms, Mukherji empowers petitioners and their lawyers. Now, EB-1A consultation with knowledgeable attorneys is more important than ever to demand clear reasons for any denial and to challenge vague findings.
EB-1A extraordinary ability and the two-step test
The EB-1A visa (“Einstein visa”) is for foreign nationals with “sustained national or international acclaim” in the arts, sciences, business, athletics, or education. An applicant must either have won a major award (like a Nobel Prize) or meet at least 3 of 10 regulatory criteria, e.g. prestigious publications, memberships, judge of others’ work, major contributions, high salary, etc.. Importantly, EB-1A applicants may self-petition without a job offer, but the standard is very high: one must have “risen to the very top of the endeavor”.
In Kazarian v. USCIS (9th Cir. 2010), the Ninth Circuit refined this process. USCIS issued a December 2010 policy memo directing officers to use a two-part adjudication: first count the number of evidentiary criteria met; second, conduct an overall “final merits determination.” As Wikipedia explains, Kazarian “led USCIS to issue a policy memo… to change its adjudication process for EB-1… to a ‘two-step review’ where the first step would focus on counting pieces of evidence and the second step would be a final merits determination”.
In theory, this means even after satisfying the 3-criterion threshold, an applicant must still demonstrate extraordinary ability in the totality of the record.
In practice, however, many attorneys have complained that this final merits step is often vague and undefined. As immigration lawyer Cyrus Mehta described it, Kazarian “was thought that the standards… would be more straightforward and streamlined,” but USCIS interpreted it to require “a vague and second step analysis known as the ‘final merits determination,’ which can stump even the most extraordinary”. USCIS officers, following internal guidance, frequently deny EB-1A cases at this stage even when the initial criteria are met. In other words, petitioners can do everything right on paper yet still be told they’re not “extraordinary enough,” without explanation.
Mukherji v. Miller: Case details and ruling
In Mukherji’s case, this exact scenario played out. She is an accomplished journalist; USCIS agreed she satisfied five of the ten EB-1A criteria, i.e. well above the three needed. Yet USCIS denied her petition at the final-merits stage, finding “the record did not show… sustained national or international acclaim” after 2015. The agency’s written denial suggested acclaim had peaked before 2016 and provided no detailed analysis. Frustrated, Mukherji sued USCIS in federal court under the APA.
On January 28, 2026, District Judge Joseph Bataillon ruled for Mukherji. Critically, the court did not reweigh the facts of her achievements; it focused on the lawfulness of USCIS’s process. The court found that the two-step “final merits” framework was never validly created through notice-and-comment rulemaking as the APA requires. A 1995 proposed rule had flagged a similar two-step method as a substantive rule, but it was never finalized. Instead, USCIS simply implemented the dual test via a 2010 policy memo and updated field manual.
Further, the court faulted USCIS for failing to acknowledge it was abandoning the long-used single-step approach and for giving no reasoned explanation for the shift. Because USCIS itself had characterized the new process as legislative (requiring rulemaking) and never actually issued a new regulation, the court held it “lacked legal force.” In short, the “final merits determination” was adopted unlawfully. The court also found the outcome “arbitrary and capricious” under APA because USCIS had not “articulate[d] a clear, reasoned basis for denial” in Mukherji’s case. (Indeed, USCIS did not specify what evidence was missing or what “standard” applied.)
The remedy was extraordinary. Rather than simply sending the case back for a do-over, the judge vacated the denial and remanded with instructions to approve the petition. This flat order to grant the EB-1A is rare and underscores the court’s view that no further adjudication under the faulty framework was necessary. In the words of one legal alert: the court “vacated USCIS’s denial of the I-140 petition and remanded the matter to the agency with instructions to approve the petition”.
What this case means for EB-1A applicants
This ruling offers valuable guidance for EB-1A applicants and their lawyers. First, it emphatically reiterates that USCIS cannot quietly change the rules. As the court noted (quoting a Supreme Court case), agencies are free to shift policy only if they “display awareness” of the change and offer good reasons. Here, USCIS failed to do that. Therefore, in future cases where USCIS denies an otherwise strong EB-1A by invoking final merits (saying simply that the applicant is not currently “indefinitely at the top of the field”), that denial may be vulnerable to challenge.
In practical terms: if USCIS concedes you meet multiple EB-1A criteria, it must explain why the petition still fails. Vague comments about acclaim or recency will not suffice. “If the reviewing officer fails to delineate the specific and legitimate reasons for the denial, then that is an arbitrary and capricious decision,” the court emphasized. In other words, you can now push back: demand that USCIS point to what evidence is lacking. EB-1A applicants can cite Mukherji in responses to RFEs or appeals, especially when they feel the case was denied on conclusory “final merits” language. One expert summary notes Mukherji “provides a clear roadmap” for challenging such denials via RFEs, appeals to the AAO, or even federal litigation.
Importantly, Mukherji does not lower the substantive standard for EB-1A. The statute still requires “sustained acclaim.” But as the court put it, nothing requires an applicant to stay at the absolute top indefinitely. USCIS often interprets final merits to mean year-after-year global fame, but the court flatly rejected that “perpetually at the top” notion. An EB-1A green card petition still needs strong evidence; Mukherji simply means USCIS must explain why the evidence falls short.
Strong cases will benefit the most from this ruling. As Manifest Law observes: “It doesn’t lower the standard, but it gives applicants a stronger tool to challenge denials that rely on vague or inconsistent reasoning”. EB-1A experts and consultants are already noting that petitioners with solid documentation (major awards, press coverage, expert letters, etc.) can cite Mukherji when agencies write only generic denials. If faced with a final-merits denial, one strategy is to demand details or appeal, pointing out that Mukherji exposed the lack of lawful basis for vague rejections.
Key takeaways from the court’s analysis
No secret rules: USCIS’s 2010 final-merits policy was not the law (no APA notice-and-comment). Agencies cannot rely on internal memos to add requirements.
- Reasoned explanations are required: If multiple criteria are met, the denial must explicitly state what evidence would have been needed. Conclusions like “applicant lacks acclaim” without support are inadequate.
- Law over Agency chevrons: The court cited Loper Bright to note that judges must independently decide these questions of law. In practice, this limits the deference USCIS gets for unpromulgated policies.
- Not a nationwide rule change (Yet): Technically this is a single District Court. USCIS has not officially changed its rule, and other courts could differ. But Mukherji sets a persuasive precedent. If, for example, USCIS appealed, higher courts might hear the issue next. In the meantime, attorneys point out that this decision is “a significant step in the right direction”.
How the EB-1A petitioners can adapt
For applicants, this is a good moment to “double-down” on evidence and strategy. An EB-1A case should include extensive documentation: major awards, influential publications or media coverage, high-impact contributions, and persuasive recommendation letters. As Manifest Law highlights, “petitions with strong documentation (like awards, media coverage, and expert letters) have a significantly higher chance of approval”. In other words, present a compelling record from the start to minimize room for final-merits doubts.
This case will remain the most interesting EB-1A breakthrough in recent times. It shows in essence that USCIS can’t simply reject a case on vague or understated grounds when the supplementary evidence is strong.
At GCEB1, we guide extraordinary achievers to adapt seamlessly to the changing policies and latest changes in the EB-1A visa landscape. Get in touch with us if you need detailed professional guidance.
Sources & Further Readings
- Boundless Immigration.“USCIS Q3 2025 Data: EB-1A Filings High as Approval Rates Dip.”Boundless, 2025.
- Envoy Global, Inc.“Nebraska Court Rejects USCIS ‘Final Merits’ Test for EB-1A Petitions.”Envoy Global, January 2026.
- Manifest Law.“EB-1 Approval Rate: What the Numbers Reveal in January 2026.” Manifest Law, January 2026.
- Manifest Law. EB-1A Final Merits Denial Overturned by Nebraska Judge. Manifest Law, 2025.
- Murthy Law Firm. “District Court Rules USCIS Use of ‘Final Merits Determination’ in EB-1(a) Petitions.” Murthy Law Firm, January 28, 2026.
- Murthy Law Firm. “Practical Impact: A Court-Ordered Approval After an EB-1(a) Denial.” Murthy Law Firm, 2026.
- U.S. District Court for the District of Nebraska. Mukherji v. Miller, No. 4:24-cv-03170 (D. Neb. Jan. 28, 2026).
- Wikipedia Contributors. “EB-1 Visa.” Wikipedia, last modified 2025. https://en.wikipedia.org/wiki/EB-1_visa
- Wikipedia Contributors. “Kazarian v. USCIS.” Wikipedia, last modified 2025. https://en.wikipedia.org/wiki/Kazarian_v._USCIS
- Wildes & Weinberg, P.C. “A Federal Court Pushes Back on USCIS’s EB-1A ‘Final Merits’ Denials.” Wildes Law, January 2026. https://www.wildeslaw.com
- Mehta, Cyrus D. “The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference.” The Insightful Immigration Blog, Cyrus D. Mehta & Partners, PLLC.https://blog.cyrusmehta.com
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