by Teodora (Teo) Purcell | Jan 30, 2026 | Uncategorised
On January 28, 2026, the U.S. District Court for the District of Nebraska granted summary judgment against U.S. Citizenship Service (USCIS) in an Administrative Procedure Act (APA) challenge to the denial of an EB1A (extraordinary ability) I140 petition in Mukherji v. Miller. The court vacated USCIS’s denial and remanded the matter with instructions to approve the petition, rather than to reconsider it.
The beneficiary, a journalist, had submitted evidence that USCIS itself found sufficient to satisfy more than the required number of regulatory criteria under 8 C.F.R. § 204.5(h)(3). Despite this, the agency denied at what it described as the “final merits determination” stage, concluding that the record did not show, in the totality of the circumstances, “sustained national or international acclaim.”
The two step EB1A framework and Kazarian
The Nebraska court framed the central issue as a legal one: whether USCIS lawfully created and implemented a twostep adjudicatory framework for EB1A petitions—including a secondstage “final merits determination”—without going through the APA’s noticeandcomment rulemaking required for substantive or legislative rules.
For years, USCIS has applied a Kazarianderived model: first, determine whether the petitioner has shown a major onetime achievement or at least three of the ten regulatory criteria; second, apply a freefloating “final merits” or “totality” analysis to decide whether the person truly has “extraordinary ability” and “sustained acclaim.” In Mukherji, USCIS conceded that the journalist met five distinct criteria but still denied under this secondstep analysis, focusing heavily on supposed lack of post2015 acclaim and an expectation of continued awards or recognition.
The court does not overrule Kazarian v. USCIS itself—that is a Ninth Circuit decision—but it squarely rejects USCIS’s transformation of Kazarian into a nationwide, twotier framework with an extraregulatory “final merits” overlay that was never adopted through formal rulemaking. In the court’s view, that “final merits determination” is a substantive change to how EB1A is adjudicated and therefore a legislative rule that is invalid absent proper noticeandcomment procedures.
Why the court found USCIS’s approach unlawful
The court identifies several independent problems with USCIS’s adoption and use of the “final merits determination” test:
- The agency originally treated a similar twostep approach as a substantive rule in a 1995 notice of proposed rulemaking but never completed the rulemaking process.
- Years later, USCIS pivoted to the Kazarianstyle twostep framework through policy memoranda—without APA noticeandcomment—while characterizing the change as nonlegislative.
- The Ombudsman had specifically recommended that USCIS use formal rulemaking if it wanted to embed a “final merits determination” as part of an objective twopart test, but the agency did not do so.
- The agency failed to acknowledge that it was discarding a singlestep approach used for nearly two decades and did not provide a reasoned explanation for the change, contrary to standards discussed in Encino Motorcars and similar cases.
The court also relies on Loper Bright Enterprises, emphasizing that courts must exercise independent judgment on legal questions and may not defer to an agency’s interpretation of ambiguous statutes simply because the statute is unclear. In this postLoper landscape, USCIS cannot expect its internal policy manuals and memoranda to receive Chevronstyle deference when they effectively rewrite the rules.
Practical impact: when litigation can lead to approval
The remedy in Mukherji is especially significant. The court did not just send the case back for another round of adjudication; it vacated the denial and remanded with instructions to approve the EB1A petition. For applicants, this underscores that, in some circumstances, APA litigation can produce a direct and enforceable approval rather than a remand for another “doover.”
At the same time, it is important to keep the decision’s formal reach in perspective. This is a single federal district court decision, not a nationwide injunction or binding precedent across all jurisdictions. USCIS may continue to apply its twostep approach in other cases, and other courts could view the issues differently. Still, Mukherji provides a carefully reasoned judicial analysis that practitioners can cite when challenging denials that rest heavily on the “final merits” concept.
What this means for EB1A and EB1B denials
Although the case arises in the EB1A context, its reasoning naturally extends to EB1B (outstanding professor/researcher) practice. Both categories are governed by statutes and regulations that define evidentiary frameworks, and both have been shaped in practice by internal USCIS guidance and policy memoranda.
Mukherji highlights several scenarios where litigation may be worth evaluating after an EB1A or EB1B denial, including where USCIS:
- Acknowledges that multiple regulatory criteria are met, but then denies based on a shifting, illdefined “final merits” or “totality” analysis.
- Applies an unwritten “recency” or “continuous awards” expectation—as if the law required uninterrupted or yearbyyear recognition at the same peak level.
- Discounts or disregards substantial evidence (awards, judging, leading roles, publications, original contributions) without clearly articulating how that record fails the statutory and regulatory standard.
Because APA litigation focuses on the administrative record and the agency’s rationale, it is not simply another “appeal” to USCIS. A federal court asks whether the agency acted arbitrarily and capriciously, abused its discretion, or acted not in accordance with law. Where the agency’s reasoning is inconsistent, unsupported by the record, or anchored in an unlawful framework such as an improperly adopted “final merits determination,” an APA challenge can provide a meaningful remedy.
Have you received an EB1A or EB1B denial?
Many applicants assume that once USCIS says, “You met several criteria, but you failed the final merits determination,” the case is effectively over. Mukherji v. Miller shows that this is not always true.
You should consider having immigration counsel review your EB-1A or EB-1B denial, especially where USCIS:
- Invoked a “final merits determination” or “totality of the evidence” analysis
- Questioned whether your acclaim was “sustained” despite a strong track record
- Concluded, in vague terms, that you were not among a “small percentage at the very top,” even while acknowledging substantial achievements
Because deadlines, venue, and strategy (refiling, administrative appeal, or federal litigation) are timesensitive, it is important to get your case evaluated promptly.
Is now a good time to file EB1A or EB1B cases?
Despite the ongoing use of the “final merits determination” framework by USCIS, Mukherji reinforces that courts are willing to scrutinize extraregulatory hurdles and hold the agency to the statute and regulations. For strong EB1A and EB1B cases—especially where the record clearly satisfies multiple regulatory criteria—this environment can favor welldocumented filings paired with a realistic litigation strategy if needed. At the same time, careful case selection, robust evidence of topoffield achievements, and strategic planning around timing and venue remain critical, given that USCIS has not yet publicly abandoned its twostep approach and other courts may rule differently.
How Purcell Law can help you
Contact us to discuss your EB-1A or EB-1B green card eligibility or whether Mukherji and similar APA arguments may support a federal court challenge, a motion to reopen, or a carefully structured refiling of your EB1A or EB1B petition.
by Teodora (Teo) Purcell | Jan 8, 2026 | Uncategorised
January 2026 is your window of opportunity—but it’s closing fast.
The Trump administration has turned up the heat on worksite enforcement to unprecedented levels. Immigration and Customs Enforcement (ICE) has more than doubled its workforce—from 10,000 agents to over 22,000 in just months—with shortened training cycles that have deployed officers into the field faster than ever before. Equipped with $75 billion in federal funding directed to ICE for expanded interior enforcement under the One Big Beautiful Bill Act, the agency is operating under enforcement quotas that have already resulted in a 30% increase in audits compared to 2024. And they’re looking at your company’s I-9 forms.
For HR professionals and business owners who sponsor employees, the compliance landscape has shifted dramatically. The question is no longer “if” you’ll face scrutiny—it’s “when.” And the stakes have never been higher. Penalties have surged to $2,861 per paperwork violation and up to $28,619 per unauthorized worker for repeat offenses. A single Notice of Inspection can put your business operations on hold for days. But here’s the good news: the beginning of 2026 is the perfect time to get ahead of this—and we can help.
Understanding the Real Threat: What Has Changed in 2025-2026
Form I-9 Updates You Can’t Ignore
In January 2025, the U.S. Citizenship and Immigration Services (USCIS) released a revised Form I-9 (Edition 01/20/25, valid through 05/31/2027) with critical updates. While these changes seem technical, they signal a broader shift in how government agencies are monitoring employment verification. The most significant update: the fourth checkbox in Section 1 was renamed from “A noncitizen authorized to work” to “An alien authorized to work” to align with statutory language.
This terminology change cascades into compliance headaches. If employees are still attesting using the older form language while E-Verify systems display the new language, mismatches occur. Employers who fail to align their systems by July 31, 2026, face audit risk. But that’s just the beginning of the 2025-2026 compliance earthquake.
The Seismic Shift: Continuous Monitoring, Not One-Time Verification
This is the game-changer that most HR professionals don’t realize yet. In 2025, E-Verify introduced a Status Change Report that fundamentally transformed employment verification from a transactional event into an ongoing obligation.
Here’s what this means: E-Verify now monitors whether Employment Authorization Documents (EADs) used for Form I-9 verification have been revoked by DHS after hire. As of July 15, 2025, the system includes an enhanced “Revoked Document Number” field that allows employers to compare employee EAD card numbers against the revoked document list. If an employee’s EAD number matches one in the revoked list, you must re-verify them immediately using Form I-9 Supplement B with a different acceptable document.
This requirement transforms E-Verify from a “set it and forget it” system into something that demands regular monitoring throughout the employment relationship. Employers who miss this critical change are unknowingly harboring compliance risk with every passing month.
ICE Enforcement Quotas: It’s Not Paranoia If They’re Actually After You
Let’s be direct: ICE field offices have been assigned minimum audit quotas. In Q1 2025, field agents received instructions to increase the volume of I-9 audits per region. The agency is using sophisticated risk assessment models to identify employers most likely to have hiring violations, and they’re focusing on high-risk industries: construction, hospitality, restaurants, and agriculture—all sectors with high turnover and documented hiring pressures. This isn’t random enforcement—it’s systematic, targeted, and escalating. The audits expected in 2025-2026 are predicted to surpass the levels seen during Trump’s first term in 2019, when ICE conducted 6,450 audits.
If your company receives a Notice of Inspection (NOI), you have only 3 business days to produce all I-9 forms for all employees. Most companies are not prepared for this deadline.
The Confusion Costing HR Teams Money: E-Verify vs. I-9—They’re Not the Same Thing
This is where critical mistakes happen.
Many HR professionals and business owners conflate E-Verify and Form I-9 as if they’re the same tool. They’re not. And this confusion is expensive.
Form I-9 is a mandatory federal form that every employer must complete for every employee hired, regardless of company size or whether E-Verify is used. Section 1 must be completed no later than the first day of work; Section 2 (employer verification) must be completed within three business days. I-9 forms must be retained for three years after hire or one year after termination, whichever is later. Failure to complete or retain I-9s correctly results in fines starting at $281 for unintentional errors.
E-Verify is a voluntary system (mandatory only for federal contractors and certain states) that electronically verifies the information on the completed I-9 against DHS and Social Security Administration databases. E-Verify does not require a Social Security number on the Form I-9 itself—asking for one can actually constitute a violation. E-Verify responds within seconds with a confirmation or a Tentative Non-Confirmation (TNC) that requires further action. Critically, E-Verify users create a “rebuttable presumption” that if they complied in good faith, they did not knowingly hire unauthorized workers.
The critical distinction: Using E-Verify does not satisfy Form I-9 requirements, and completing a Form I-9 does not satisfy E-Verify obligations. An employer can have a perfectly completed I-9 but fail to use E-Verify properly (or at all), or conversely, use E-Verify without proper I-9 documentation backing it up. Both scenarios create audit exposure.
The System Behind the Forms: Your Commercial I-9 Software Needs an Audit Too
Here’s another layer of compliance risk that many organizations overlook: if you’re using an electronic I-9 management system (whether it’s a standalone platform or integrated into your HRIS), that system itself must comply with federal requirements.
In December 2023, the Department of Justice and ICE’s Homeland Security Investigations issued guidance on this exact issue. Employers using commercial I-9 software must ensure their system meets stringent requirements, including:
- Integrity, accuracy, and reliability of the system
- Security and documentation standards
- Audit trails and indexing capabilities
- Ability to make and record corrections to Section 2
- Unique identification of anyone accessing, modifying, or correcting a form
- Proper electronic signature and retention protocols
Simply using I-9 software doesn’t guarantee compliance—you remain ultimately responsible for confirming your system meets all legal requirements. Many employers discover during an audit that their HRIS provider or I-9 software vendor has cut corners on security, audit trails, or data integrity. A breach or system failure discovered during an ICE audit becomes your liability, not the vendor’s.
This is where a comprehensive audit by an immigration attorney becomes invaluable. We can assess whether your systems are audit-ready and identify vulnerabilities before ICE does.
Why January 2026 Is Your Critical Window
The timing matters. We are in the first month of 2026, and the enforcement environment is more aggressive than at any point in the past decade. Multiple factors converge right now:
- The new Form I-9 edition is fully in effect. Employers must transition by July 31, 2026, which means you have approximately six months to ensure systems, training, and processes align with the updated form. Delaying this transition increases audit risk.
- The Status Change Report is fully operational. Employers cannot claim ignorance about revoked EADs. Proactive monitoring of Status Change Reports is now a documented compliance obligation.
- ICE enforcement is at peak deployment. With 22,000+ agents in the field and quotas in place, the probability of an audit is higher in Q1-Q2 2026 than it will be later in the year when many agencies have met their quotas.
- Penalty structures are finalized and severe. DHS adjusted civil penalties for 2025 inflation, and fines remain at historically high levels. Knowingly hiring unauthorized workers can result in fines up to $28,619 per violation for repeat offenses.
- Your competitors are not prepared. Most companies have not yet conducted internal audits or updated training in response to 2025 changes. Companies that move first gain significant competitive advantage in demonstrating proactive compliance if audited.
How We Help: Your Immigration Law Firm’s Role
As immigration attorneys with 20+ years specializing in employment-based immigration, we understand both the visa sponsorship side and the employer compliance side. We’ve navigated multiple audits, settled disputes, and helped companies rebuild after compliance failures. Here’s what sets our approach apart:
- We speak HR’s language.We don’t just cite legal regulations—we translate them into practical, implementable processes. Your HR team doesn’t need to become immigration lawyers; they need clear checklists, templates, and training that make compliance the default, not the exception.
- We identify hidden exposures.Many companies have compliance gaps they don’t know exist: employees sponsored for green cards who aren’t properly re-verified when their work authorization status changes; E-Verify cases created outside the 3-day window; commercial I-9 systems with inadequate audit trails; remote verification procedures that don’t comply with DHS guidance. These gapsonly surface in an audit—unless you find them first.
- We prepare you for the inevitable. If your company is audited, documentation of prior internal audits, training, and corrective actions becomes your shield. We help you build a compliance record that demonstrates good faith, which can substantially reduce penalty exposure.
We stay current with policy changes. Immigration compliance is not static. We monitor USCIS announcements, ICE enforcement patterns, and state-level regulatory changes (like Illinois’s new privacy requirements in Form I-9 processing). You can rely on us to flag emerging risks and adjust recommendations accordingly.
The immigration enforcement environment in 2026 is fundamentally different from years past. ICE has the budget, personnel, and political mandate to conduct audits at an unprecedented scale. Penalties are severe. The margin for error is razor-thin.
But this is also the moment to be proactive – by investing in a comprehensive I-9 and employer compliance audit now—while enforcement is escalating but your company still has the advantage of choosing its own timeline—you protect your business, your employees, and your reputation.
The alternative is waiting for a Notice of Inspection, then scrambling to respond under pressure while your business operations stall.
Your window is open. January 2026 is the right time to act. Contact us at 858 252 1373 or info@purcell.law to discuss how we can help.
by Teodora (Teo) Purcell | Jan 2, 2026 | Uncategorised
As we close out 2025, I find myself reflecting on what has been one of the most turbulent years in US immigration policy that I’ve witnessed in my two decades of practice. The changes have been swift, sweeping, and—for many of my clients—devastating. If you’re navigating the immigration system right now, you need to understand what happened this year and what it means for your case.
The Great TPS and Parole Cancellations: Over 1.5 Million Lost Legal Status
Perhaps the most shocking development of 2025 was the termination of Temporary Protected Status (TPS) for immigrants from 11 countries, affecting more than 1 million people. Before this administration took office, there were approximately 1.3 million TPS recipients. By February 2026, the vast majority will lose their protections.
Haiti and Venezuela alone account for 935,000 of those losing status. What makes this particularly painful is that many Venezuelan TPS recipients were first granted protections during the first Trump administration in 2021, citing the “worst humanitarian crisis in the Western Hemisphere.” That reasoning apparently no longer applies.
Additionally, the administration ended humanitarian parole for 532,000 immigrants from Cuba, Haiti, Nicaragua, and Venezuela (CHNV programs), opening them up for deportation proceedings. In May 2025, the Supreme Court allowed the administration to end parole status for CHNV beneficiaries. This represents the most rapid loss of legal status for immigrants in recent United States history.
The economic impact is staggering. Experts estimate that removing just the Venezuelan and Haitian TPS recipients would cause the economy to contract by more than $14 billion. Florida alone has over 400,000 TPS recipients, and Texas has nearly 150,000. Industries like construction and healthcare are already feeling the impact.
Employment-Based Immigration: A Perfect Storm
If you’re pursuing employment-based immigration, 2025 threw multiple curveballs your way.
H-1B Program Overhaul
The administration implemented a new weighted H-1B lottery system that prioritizes higher-salaried positions over entry-level roles. A proposed rule published in December 2025 codifies this wage-based selection process, fundamentally changing who gets selected in the lottery.
Additionally, Senators Grassley and Durbin introduced the H-1B and L-1 Visa Reform Act of 2025, which would require H-1B workers to be paid the highest of the local prevailing wage, the median wage for the occupation, or the median wage for skill level 2. The bill would also cap H-1B/L-1 holders at no more than 50% of an employer’s workforce and prohibit outsourcing to third-party sites without DOL approval.
In September 2025, the administration announced a new $100,000 fee for certain H-1B employers, adding yet another barrier to the program.
Priority Date Retrogression and Visa Cap Exhaustion
In August 2025, the EB-2 category unexpectedly retrogressed for Rest of World countries, catching many applicants off guard. Then in September 2025, the State Department announced that all available EB-1 and EB-3 immigrant visas for fiscal year 2025 had been exhausted—meaning no more could be issued until October 1, 2025.
This was particularly unexpected for the EB-1 category, which had historically been current. USCIS also changed its policy on CSPA age-locking for Indian EB applicants in August 2025, making it harder for children to preserve their eligibility.
I-140 Processing and Enhanced Scrutiny
USCIS issued a policy memorandum in December 2025 placing holds and enhanced reviews on asylum applications and a wide range of benefit applications filed by individuals from the 19 travel ban countries. This includes Adjustment of Status (I-485), Green Card Replacement (I-90), Removal of Conditions (I-751), and even Naturalization (N-400) applications.
The Asylum System: Grinding to a Halt
On November 28, 2025, USCIS announced that it has stopped making any decisions on pending asylum applications. While USCIS says they will continue to accept new asylum applications and conduct interviews, they will not make any final decisions to grant or deny asylum. No timeline has been provided for when this pause will end.
This leaves approximately 1.4 million asylum applications in limbo, with people who fled violence and persecution facing indefinite uncertainty about whether they can stay safely in the United States.
The administration has also proposed establishing “Humanitarian Campuses” along the southern border where asylum seekers would be processed within 60 days, though this proposal (part of the Dignity Act of 2025) remains in legislative limbo.
Expanded Travel Bans and Enhanced Vetting
In June 2025, the administration imposed entry restrictions on nationals from 12 countries (the “travel ban”). In December 2025, this was expanded to 19 countries total, with full entry bans on nationals of Afghanistan, Burma, Chad, Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, Yemen, and starting January 1, 2026: Burkina Faso, Laos, Mali, Niger, Palestine, Sierra Leone, South Sudan, and Syria.
USCIS established a new vetting center in Atlanta that uses artificial intelligence to screen immigration applications. The administration also mandated biometric collection (facial photos, fingerprints) for virtually all non-US citizens entering and exiting the United States, effective December 26, 2025. Consulates now review social media platforms of H-1B and H-4 visa applicants, requiring applicants to set their profiles to “public.”
EAD Changes: The End of Automatic Extensions
On October 30, 2025, DHS eliminated the automatic 540-day extension of Employment Authorization Documents (EADs) for most renewal applications. This affects critical categories including:
- C09: Pending Adjustment of Status applicants
- C26: H-4 spouses
- Asylees, refugees, and many other categories
Applications filed before October 30, 2025 are grandfathered in, but anyone filing on or after that date faces potential gaps in work authorization if USCIS doesn’t process their renewal before their current EAD expires. This creates significant uncertainty for both employees and employers.
On December 5, 2025, USCIS further reduced the maximum validity period for certain EADs from five years to just 18 months, requiring more frequent renewals and more opportunities for vetting.
The “One Big Beautiful Bill”: $170 Billion for Enforcement
On July 4, 2025, President Trump signed the “One Big Beautiful Bill Act,” which includes approximately $170 billion for immigration and border enforcement, including:
- $45 billion for detention capacity expansion
- $29.9 billion for enforcement and removal operations
- $13.5 billion for state immigration enforcement reimbursement
- $3.3 billion for prosecutions and immigration judges
The bill also imposed mandatory fees that effectively turn immigration into a pay-to-play system. Asylum applicants now must pay a $100 filing fee plus $100 annually while their application is pending. A $250 “visa bond” applies to all nonimmigrant visas. These fees are layered on top of existing fees, putting legal pathways out of reach for many.
Immigration Courts: Decimated by Judge Purges
More than 100 immigration judges (approximately 15%) have been fired, transferred, or forced to resign since January 2025. California alone lost at least 35 immigration judges, down from 132. San Francisco lost 21 judges, leaving only four to handle a backlog of 120,000 cases.
Many judges report being fired without explanation—simply receiving an email stating they were no longer immigration judges. The Immigration Judge Union has raised serious concerns about pressure to expedite cases and the loss of due process. With fewer judges handling a backlog of over 3 million cases, expect even longer wait times for hearings.
Other Significant Changes
Public Charge: In November 2025, DHS proposed rescinding the 2022 public charge rule without providing a replacement policy. This creates massive uncertainty about what benefits immigration officers might consider when evaluating whether someone is likely to become a “public charge.”
DACA: On January 17, 2025, the Fifth Circuit Court of Appeals ruled against the DACA program but allowed renewals to continue pending further litigation. Initial DACA applications remain blocked. The program remains in legal jeopardy.
Naturalization Test: USCIS announced changes to the naturalization test effective October 20, 2025, expanding the test to 128 questions and requiring applicants to answer 12 out of 20 questions correctly.
O-1 Visas: In a rare bit of good news, USCIS updated its O-1 visa policy in January 2025 to clarify that beneficiary-owned companies can petition, provide more flexibility for 3-year extensions, and include examples for AI and technology professionals.
What Should You Do?
If you’re navigating the immigration system right now:
- Act quickly: Don’t wait if you’re eligible to file something now. Processing times are unpredictable, and policies can change overnight.
- File EAD renewals early: You can file up to 180 days before expiration. Given the elimination of automatic extensions, this is critical.
- Document everything: Keep copies of all approvals, receipts, and communications. Immigration enforcement has increased dramatically.
- Seek legal counsel: The complexity and rapidly changing landscape make professional guidance more important than ever.
- Stay informed: Sign up for updates from reliable sources. What’s true today may change tomorrow.
2025 has been a year of unprecedented upheaval in US immigration policy. The human cost—families separated, careers disrupted, lives upended—is immeasurable. As we head into 2026, vigilance and preparation are your best tools for navigating this challenging environment.
If you have questions about how these changes affect your case, don’t hesitate to reach out for a consultation. In times like these, expert guidance can make all the difference.
