In January 2026, the United States District Court in Nebraska vacated U.S. Citizenship and Immigration Services’ (USCIS) denial of an EB-1A extraordinary ability petition on the grounds that the agency’s “final merits” determination was unlawful. In remanding the petition to USCIS for approval, the court in Mukherji v. Miller set off a flurry of discourse in the EB-1A world as this was the first decision in which a federal court found that USCIS did not lawfully adopt its final merits determination.
By way of background, EB-1A classification provides a path to U.S. permanent residency (or a “green card”) to individuals who are in the small percentage at the very top of their fields. Extraordinary ability is demonstrated through a showing of sustained national or international acclaim, and the individual seeking EB-1A classification must demonstrate recognition of their achievements in the field of expertise through extensive documentation, which shall include evidence of a major one-time achievement (such as the Nobel Prize or Turing Medal) or documentation that at least 3 enumerated regulatory criteria are satisfied. Moreover, the individual seeking EB-1A classification must continue to work in the field of extraordinary ability and establish the substantial prospective benefit of their work for the United States. Unlike many employment-based immigration benefits, an EB-1A may be self-sponsored and does not require a U.S. job offer.
The Court’s focus in Mukherji, however, was not on the statutory provisions that govern EB-1A eligibility. Rather, the focus of the Court’s analysis was the agency’s “final merits” determination as adopted via policy memorandum in December 2010. The “final merits” assessment finds its origins in the Ninth Circuit’s decision in Kazarian v. USCIS and was adopted by USCIS to establish a two-step analytical review of EB-1A petitions. At the first step, the agency considers whether the evidence meets the parameters of the regulatory criteria. At the second and more subjective step, the agency evaluates all evidence together to determine if the petition in its entirety establishes the high level of expertise required for EB-1A classification. In Mukherji, the Court found that USCIS did not properly adopt this two-tiered system under the requirements of the Administrative Procedures Act (APA). The agency did not provide notice regarding its abrupt change in policy, did not provide an opportunity for notice and comment, and failed to clearly articulate a clear and justified reason for the policy change, among other flaws, rendering the change arbitrary and capricious.
Notably, the Court in Mukherji also acknowledged the significant changes in administrative law brought by the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned Chevron v. National Resources Defense Council in holding that courts must exercise independent judgement in deciding whether an agency has acted within its statutory authority. As a result, all questions of law must be determined by the Court; in Mukherji, the Court is clear in its findings that the questions surrounding the adoption of the two-tiered, final merits adjudications policy by USCIS is a question of law.
While the holding in Mukherji does not eliminate the final merits assessment, and individuals seeking EB-1A classification should still expect USCIS to apply this framework to adjudications, the reasoning of the court provides practical tools for future EB-1A filings, responses to Requests for Evidence (RFEs), and potential litigation. Indeed, although Mukherji is limited in its impact, it is a bright spot in an evolving landscape for EB-1A filings.
Under the second administration of President Donald Trump, there have been significant changes to the adjudication of immigration benefit applications, including for highly-skilled workers, and the EB-1A category is no exception. Recent data shows that over 45% of EB-1A filings adjudicated by USCIS in the fourth quarter of 2025 were denied, compared with just over 25% in the fourth quarter of 2024, with many denials seemingly grounded in the same “final merits” review at issue in Mukherji.
Individuals considering EB-1A filings, including those seeking to navigate long wait times in other employment-based categories or market conditions that make the flexibility of self-sponsorship attractive, should be prepared to leverage elements of the framework established in Mukherji to help optimize chances of success in a challenging climate. In particular, Mukherji provides a path to challenge vague assertions by USCIS adjudicators and to push back on USCIS demands that individuals must sustain a high level of excellence to establish EB-1A eligibility. As always, it is crucial for petitioners to prepare well-documented filings that are accompanied by a clear narrative to guide the USCIS adjudicator, including a clear delineation between criteria-based arguments at step one of the Kazarian analysis and the overall narrative that ties the evidence together at step two. Moreover, it is more important than ever to avoid reliance on letters of support alone, as providing the agency with clear, well-defined corroborative evidence of achievements is imperative to success, with even the Court in Mukherji going out of its way to highlight that the plaintiff had submitted “substantial documentation of her excellence.” With more changes likely on the horizon, building the strongest possible filing is more important than ever.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the May 8, 2026 edition of The Legal Intelligencer© 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
