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Same Courthouse, Opposite Answers: Nebraska Judge Upholds the EB-1A “Final Merits” Test
The “final merits determination” is the last step in USCIS’s review of an initial EB-1A petition, and it has drawn a string of legal challenges. In January, a federal judge in Nebraska ruled that USCIS had unlawfully adopted it. Last month, a judge in the same district reached the opposite conclusion in Agarwal v. Miller, according to a report by Manifest Law on October 20, 2026. Here our EB1A consultants have analyzed and discussed these two contradictory legal verdicts and what they mean for the eb-1a green card applicants.
What the final merits test is
Congress reserved the EB-1A category for people of extraordinary ability in the sciences, arts, education, business or athletics. That ability must be shown by sustained national or international acclaim. Under the regulations, a petitioner can qualify with a major, internationally recognized award or by meeting at least three of ten listed evidentiary criteria, as immigration lawyers Cyrus Mehta and Manjeeta Chowdhary explain.
After the Ninth Circuit’s decision in Kazarian v. USCIS, the agency built a two-step framework. At step one, the officer decides whether the evidence meets at least three criteria. At step two, the final merits determination, the officer weighs the whole record to decide whether the person truly has the required expertise and acclaim.
The controversy comes from the fact that neither the statute nor the regulation describes this second step. Mehta and Chowdhary note that petitioners can satisfy three, four or even five criteria and still be denied. USCIS may conclude the evidence does not place them among the small percentage at the very top of their field.
January’s ruling in Mukherji
Indian journalist Anahita Mukherji sued USCIS on September 17, 2024, after her EB-1A petition was denied. USCIS had acknowledged that she met five of the ten criteria. On January 28, 2026, Nebraska District Judge Joseph F. Bataillon ordered the agency to approve her case.
He found the two-step framework had not been validly adopted through notice-and-comment rulemaking and that USCIS had not adequately explained the policy. He also held that its legality is a question of law for courts to decide independently after the Supreme Court’s Loper Bright decision. USCIS appealed, then withdrew the appeal in June. That left the ruling in place for Mukherji but created no binding appellate precedent. Manifest Law noted at the time that the decision was non-binding and that USCIS would keep applying final merits analysis.
The opposite result in Agarwal from Mukherji vs. Miller
In Agarwal v. Miller, plaintiff Prakhar Agarwal made two claims. He argued that the final merits test has no basis in the regulations, and that the government adopted it without formal rulemaking. Chief Judge Brian C. Buescher rejected both and dismissed the case with prejudice.
He ruled that reviewing the totality of the evidence matches the law’s requirement of sustained acclaim. He also found that the 2010 USCIS policy memo creating the step was an interpretive rule, which needs no notice and comment.
Agarwal’s lawyers leaned heavily on Mukherji, but Buescher refused to follow it, calling it “unsound and unconvincing,” according to Mehta and Chowdhary. He relied on the Fifth Circuit’s Amin v. Mayorkas. On that reasoning, meeting three criteria is necessary but not automatically sufficient. The statute demands extraordinary ability, sustained acclaim, extensive documentation, an intent to keep working in the field and a prospective benefit to the United States, not just a pile of evidence in three categories.
Why a judge in the same district can disagree
Manifest immigration attorney Ana Gabriela Urizar explained that one district judge’s ruling does not bind another, even in the same district. Only the Eighth Circuit or the Supreme Court could bind Buescher, and the Eighth Circuit never ruled because the government dropped its Mukherji appeal.
A procedural win for petitioners
Agarwal did contain one point that favors applicants. The government argued that any challenge to the 2010 policy expired in 2016 under the six-year limit for suing the federal government. Buescher disagreed. Following the Supreme Court’s Corner Post decision, the clock starts when the policy injures a particular plaintiff through a final denial, not when the policy was first announced. Mehta and Chowdhary call this aspect of the ruling favorable to EB-1 petitioners.
A growing list of government wins
Agarwal is not alone. Manifest Law lists several recent decisions siding with USCIS:
- Sesham v. Miller (September 14): Buescher rejected the same arguments and dismissed with prejudice.
- Rakhmatullin v. Miller (September 29): Buescher described the complaint as essentially identical to those in Sesham and Agarwal.
- Branski v. Brennan Seng (August 19): a federal magistrate judge in Wisconsin found the petitioner had not shown that the step exceeded USCIS’s legal authority.
Not the last word however
Mehta and Chowdhary call Agarwal a setback for efforts to dismantle the test, but not the end of the fight. They argue there is a real difference between applying the statute’s elements and imposing a separate adjudicatory rule untethered from the regulatory text. They add that after Loper Bright, courts, not the agency, must decide the statute’s limits.
They also point to Scripps College v. Jaddou, an EB-1B case. USCIS agreed an art historian met three of six criteria when only two were required, yet denied the petition at final merits. The Nebraska court found the denial arbitrary and capricious. That narrower path lets petitioners win by showing USCIS applied the test arbitrarily in their own case. A circuit court ruling, and possibly a split among circuits, could eventually send the question to the Supreme Court.
What applicants should do now
Urizar’s advice is to assume USCIS will keep using step two, and that meeting three criteria alone will not carry a petition. In her view, every EB-1A should be built for final merits review from the start. WeGreened offers similar guidance. It says petitions should continue to address both the regulatory criteria and final merits concerns unless USCIS amends its Policy Manual. Lawyers can still cite Mukherji in responses to requests for evidence and notices of intent to deny, though only as non-binding authority.
At GCEB1, our EB1A experts regularly write about emerging policies and legal landscapes that matter most for the green card aspirants. Stay tuned to us if you need personalized guidance on merit based permanent residency. We wish you a safe and stress free immigration journey ahead.
Frequently Asked Questions
1. What is the EB-1A final merits determination?
It is the second step of USCIS’s review. After finding that the evidence meets at least three criteria, the officer weighs the whole record to decide whether the applicant has extraordinary ability.
2. What did Agarwal v. Miller decide?
Chief Judge Buescher upheld USCIS’s use of the test and dismissed the challenge with prejudice.
3. What did Mukherji v. Miller decide?
In January 2026, Judge Bataillon found the test unlawfully adopted and ordered USCIS to approve Anahita Mukherji’s petition.
4. Why do the two rulings conflict?
Different judges read the law differently. Buescher found the test a lawful way to apply the “sustained acclaim” requirement and called Mukherji unsound.
5. Does Mukherji still help applicants?
Yes, as a persuasive but non-binding authority that attorneys can cite in responses to RFEs and NOIDs.
6. Does meeting three criteria guarantee approval?
No. Under the Agarwal reasoning, three criteria are necessary but not enough on their own.
7. Did the six-year deadline bar Agarwal’s claim?
No. The court said the clock runs from the final denial that injures the petitioner.
8. Will this go to a higher court?
Possibly. Only the Eighth Circuit or the Supreme Court could bind district judges there, and no circuit has ruled yet.
9. How should I prepare my EB-1A?
Build the petition to satisfy both steps, with strong evidence of sustained acclaim, and consult an immigration attorney.
Sources & further readings
- Espinoza Jaen, Caryl. “Nebraska Judge Upholds EB-1A Final Merits Test.” Manifest Law, October 20, 2026. https://manifestlaw.com/news/agarwal-miller-eb1a-final-merits-ruling-10-20-2026.
- Manifest Law. “Nebraska Federal Court Challenges USCIS’s ‘Final Merits’ Requirement in EB-1A Case.” 2026. https://manifestlaw.com/news/nebraska-judge-orders-uscis-approve-eb1a.
- Mehta, Cyrus D., and Manjeeta Chowdhary. “Agarwal v. Miller Clashes with Mukherji v. Miller Over the EB-1 Final Merits Determination.” The Insightful Immigration Blog, October 18, 2026. https://blog.cyrusmehta.com/2026/10/agarwal-v-miller-clashes-with-mukherji-v-miller-over-the-eb-1-final-merits-determination.html.
- Visa Lawyer Blog. “Nebraska Federal Court Orders USCIS to Approve EB-1A After Unlawful Final Merits Denial.” Accessed October 22, 2026. https://www.visalawyerblog.com/nebraska-federal-court-orders-uscis-to-approve-eb-1a-after-unlawful-final-merits-denial/.
- WeGreened. “A Federal Court Questions USCIS’s Final Merits Determination in EB-1A Cases: What This Means for Applicants.” Accessed October 22, 2026. https://www.wegreened.com/A-Federal-Court-Questions-USCIS's-Final-Merits-Determination-in-EB-1A-Cases:-What-This-Means-for-Appli
