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.
