A recent decision from the U.S. District Court for the District of Nebraska, Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb. Jan. 28, 2026), offers meaningful new support for individuals pursuing the EB-1A Green Card Process. The court set aside a denial that rested on the “final merits determination” and ordered USCIS to approve the petition outright. While the ruling is not binding nationwide, it provides petitioners and practitioners with a powerful new tool for responding to Requests for Evidence and denials that turn on this two-step analysis.

Eligibility for an EB-1A Green Card

An applicant is eligible for an EB-1A immigrant visa where they have extraordinary ability in a field of science, art, education, business, or athletics, demonstrated by sustained national or international acclaim. Under the regulations at 8 C.F.R. § 204.5(h)(3), the applicant must either have received a major, internationally recognized award (such as a Nobel Prize) or satisfy at least three of the following ten criteria:

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
• Membership in associations in the field that require outstanding achievements of their members, as judged by recognized national or international experts in the discipline or field;
• Published material about the applicant in professional or major trade publications or other major media, relating to the applicant’s work;
• Participation, either individually or on a panel, as a judge of the work of others in the same or an allied field;
• Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
• Authorship of scholarly articles in the field, in professional or major trade publications or other major media;
• Display of the applicant’s work in the field at artistic exhibitions or showcases;
• Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
• Command of a high salary or other significantly high remuneration for services, in relation to others in the field; or
•  Commercial successes in the performing arts.

The Two-Step Framework

Since 2010, USCIS has evaluated EB-1A petitions using a two-step framework that was built on the Ninth Circuit’s decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). At the first step, USCIS determines whether the applicant satisfies at least three of the ten regulatory criteria (or has received one qualifying major award). At the second step, the “final merits determination,” USCIS conducts a review of the entire record to decide whether the applicant has sustained national or international acclaim and is among the small percentage who have risen to the very top of the field.

Importantly, this second step was never written into the statute or regulations. It traces to a single line in Kazarian and was adopted by USCIS through internal policy guidance, where it is now reflected in the USCIS Policy Manual. In recent years, practitioners have seen a marked increase in denials based on this final merits determination, often where USCIS concedes that the applicant met the regulatory criteria but concludes that the record nonetheless falls short.

The Decision in Mukherji v. Miller

The petitioner, Anahita Mukherji, is an accomplished Indian journalist. USCIS agreed that she satisfied five of the ten regulatory criteria, well above the required three, yet denied her petition at the final merits stage, reasoning that her achievements were not recent enough and that she had not shown “sustained” acclaim. The court rejected that reasoning and vacated the denial, ordering USCIS to approve the petition.

The heart of the decision is procedural. The court held that USCIS imposed the second-step final merits determination through internal guidance rather than through the notice-and-comment rulemaking that the Administrative Procedure Act requires for a rule of that effect. The court further found the agency acted arbitrarily and capriciously by abandoning its earlier approach, under which meeting the criteria was generally sufficient, without acknowledging the change. Notably, the court reached these conclusions exercising independent judgment on the questions of law, citing the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) which eliminated Chevron deference (deference to the agency interpretation). The court also rejected the “recency” expectation USCIS applied, finding no basis in the statute for requiring continuous, year-by-year recognition. The statute calls for sustained acclaim, not perpetual and uninterrupted accolades.

USCIS initially appealed the decision to the U.S. Court of Appeals but recently withdrew the appeal in June 2026.

What the Decision Does Not Mean

• The decision is not binding precedent outside the District of Nebraska, and USCIS may argue that it applies only to that case.
• USCIS has not rescinded its long-standing approach and is expected to continue applying the two-step framework, including a final merits determination, in cases nationwide.
• Other courts previously reached the opposite conclusion. The Fifth Circuit, in Amin v. Mayorkas, upheld the final merits determination as an interpretive rule. However, that decision was made before Loper Bright was decided.

What the Decision Means

• The ruling provides strong persuasive authority for challenging denials and Requests for Evidence that turn on the final merits determination, particularly where USCIS concedes that the criteria were met but still denies.
• In the post-Loper Bright environment, agency-created adjudicatory frameworks that are untethered from the statute and regulations face heightened judicial scrutiny, a point that extends well beyond this single case.
• It offers a roadmap for responses to Requests for Evidence, Notices of Intent to Deny, appeals, and federal court litigation grounded in the APA, especially where a denial leans on an unsupported “recency” theory or otherwise reweighs evidence the agency already credited.

Conclusion

While EB-1A adjudications have grown stricter in recent years, the category remains an excellent option for individuals of extraordinary ability who have earned sustained acclaim in their field. Mukherji v. Miller does not eliminate the final merits determination, but the decision (and the procedural reasoning behind it) gives practitioners meaningful new support to argue for approval, and to push back when USCIS denies deserving cases based on requirements that appear nowhere in the statute.

If you are considering an EB-1A petition, reach out to the attorneys at Minsky, McCormick, & Hallagan to assess your potential eligibility.