The Problem Nobody Warned You About
The EB-1A final merits determination is the reason strong petitions are getting denied in 2026 — even when they meet every criterion USCIS asks for.
Here’s the scenario playing out across hundreds of cases right now: you meet five, six, sometimes seven of the ten regulatory criteria. USCIS acknowledges it in writing. And then denies you anyway, citing a lack of “sustained national or international acclaim.”
Same evidence USCIS just accepted. Different outcome than the officer who reviewed a nearly identical file in 2023.
If that sounds contradictory, it’s because it is. And as of January 2026, a federal court agrees.
What Is the EB-1A Final Merits Determination?
To understand why this is happening, you need to understand the two-step process USCIS uses to evaluate every EB-1A petition — a framework that traces back to Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).
Step One: The Criteria Check. USCIS reviews your evidence against the ten regulatory categories under 8 CFR § 204.5(h)(3) — awards, published material, judging others’ work, original contributions, and so on. You need to satisfy at least three.
Step Two: The Final Merits Determination. This is where it gets subjective. Even after you clear Step One, USCIS conducts a second, discretionary review of the totality of your evidence to decide whether you’ve demonstrated sustained acclaim and rank among “the small percentage who have risen to the very top” of your field.
For most of the last decade, this second step existed quietly in the background. That changed in 2025.
The Common Mistake: Treating Step One as the Finish Line
Most petitioners — and, frankly, some attorneys — build a case to satisfy three criteria and stop there.
Why this fails now:
- Assumption: “If I meet three criteria, I qualify.” Reality: meeting the minimum is only half the analysis.
- Assumption: “More criteria means more safety.” Reality: Step Two denials increasingly hit petitioners who meet five or more criteria.
- Assumption: “The same evidence approved in 2023 will work in 2026.” Reality: reported approval rates have fallen from a historical 60–70% range to as low as 30% under more aggressive Step Two scrutiny.
The cost of this mistake isn’t abstract. It’s a denial, a wasted filing fee, months of lost time — and for many petitioners, a visa bulletin wait that just got years longer.
The Mukherji Ruling: A Federal Court Pushes Back
On January 28, 2026, a federal district court in Nebraska issued a decision that immigration attorneys have been watching closely: Mukherji v. Miller.
The petitioner in that case met five of the ten regulatory criteria — well above the required three. USCIS denied the petition anyway at the final merits stage, arguing the record didn’t show sustained acclaim.
The court didn’t just disagree with that outcome. It questioned whether USCIS ever had the authority to run a “final merits determination” at all — finding that the agency adopted the two-step framework without the public notice-and-comment process required for major policy changes, and that its application in this case was arbitrary.
The court ordered USCIS to approve the petition.
What this doesn’t mean: an automatic win for every denied case. The ruling isn’t binding nationwide, USCIS continues applying the two-step framework while the government appeals, and the outcome at the appellate level is still undecided.
What it does mean: for the first time, a federal court has put the legal basis of the final merits determination on the record as questionable — not just as a subjective inconvenience petitioners complain about.
What This Means for Your Petition Right Now
If you’re preparing an EB-1A petition in 2026, three things follow from this ruling:
- Meeting three criteria is not a strategy — it’s a minimum. Build for Step Two from the start, not as an afterthought.
- Quality of narrative now outweighs volume of documents. A well-argued case with five airtight criteria beats a thin case with eight loosely connected ones.
- If you were already denied at Step Two, you may have options. Petitioners denied between 2009 and 2026 on final-merits grounds may have grounds to challenge those decisions, depending on their specific facts and timing.
None of this means the EB-1A category has become unreachable. It means the margin for error has narrowed.
Building a Petition That Survives Step Two
Use this checklist before you file — or before you decide whether to challenge a denial you already received.
| Question | Why It Matters |
|---|---|
| Does each criterion connect to a specific, measurable impact — not just a title or credential? | Step Two rewards impact, not decoration |
| Is there an explicit narrative tying your criteria together into one “top of the field” story? | USCIS evaluates the totality, not isolated boxes checked |
| Have you addressed likely counterarguments before an officer raises them? | Reduces the chance of a discretionary denial |
| Is your evidence independent and verifiable — not self-reported? | Weak, unverifiable evidence is the first thing Step Two discounts |
| If denied, was the denial based on evidence you’d already met at Step One? | This is the exact pattern challenged in Mukherji v. Miller |
Quick self-check:
✅ I can explain, in two sentences, why I’m in the top percentage of my field — not just that I meet three criteria ✅ My strongest evidence is documented by third parties, not self-authored
✅ My attorney has reviewed my case specifically for Step Two exposure, not just Step One eligibility
✅ I understand my options if I’m denied despite meeting the regulatory minimum
If you answered “no” to any of these, a strategic case review before filing is worth far more than a corrective strategy after a denial.
Case Study
A research scientist in the biotech field met five of the ten EB-1A criteria: original contributions, judging others’ work, published material, and two others tied to her research impact.
Her first draft petition documented each criterion separately, as a checklist. On paper, it looked complete.
The gap: nothing tied those five criteria into a single narrative demonstrating she ranked among the top of her field — the exact question a Step Two reviewer asks. Before filing, the petition was restructured around one throughline: how her specific contribution changed a widely-used method in her subfield, corroborated by independent citations and unsolicited recognition from researchers outside her own institution.
Same underlying evidence. A materially different case at Step Two.
Frequently Asked Questions
What is the EB-1A final merits determination?
It’s the second step of USCIS’s two-step EB-1A review. After confirming you meet at least three of the ten regulatory criteria, USCIS separately evaluates whether your total body of evidence shows sustained national or international acclaim.
Does meeting more criteria guarantee approval?
No. Petitioners who meet five, six, or even seven criteria have still been denied at the final merits stage if the evidence doesn’t cohere into a clear “top of the field” narrative.
Is the EB-1A final merits determination still legal after Mukherji v. Miller?
The ruling questions its legal basis but doesn’t eliminate it. USCIS continues applying the two-step framework while the decision is appealed, and the ruling isn’t binding outside that court’s jurisdiction.
Should I still pursue EB-1A in 2026?
For genuinely strong profiles with a well-built narrative, yes. The category hasn’t closed — but the standard for what “well-built” means has gotten stricter, and generic petitions carry more risk than they did in 2023.
What to Do Next
The final merits determination isn’t going away this year. But it is, for the first time, being questioned in federal court — and that changes the conversation for anyone filing now, or anyone who was denied in the past few years.
At Silmi Law, we build EB-1A petitions specifically to withstand Step Two scrutiny — not just to clear the Step One checklist. If you’re preparing to file, or you were denied despite meeting the regulatory minimum, an informed strategic review now is worth far more than a corrective one later.
Schedule a strategic case review with Attorney Sharif Silmi. In 30 minutes, we’ll evaluate whether your evidence is built to survive both steps of USCIS review — not just the first one.
Legal Disclaimer
This blog post is provided for informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship with Silmi Law Firm. Immigration law is highly fact-specific and complex. The information provided here represents general principles and should not be relied upon as advice for your specific situation.
Important: Before taking any action related to your immigration status, visa application, or green card petition, you should:
- Consult with a qualified immigration attorney
- Provide complete information about your circumstances
- Obtain written legal advice tailored to your situation
The immigration laws, regulations, USCIS policies, and case law referenced in this blog are current as of the publication date but may change. Silmi Law makes no guarantee of the accuracy, completeness, or applicability of any information contained herein, and does not guarantee any outcome for any petition.
For legal representation, contact Silmi Law at:
- Phone: +1 (443) 329-2929
- Email: info@silmilaw.com
- Website: silmilaw.com
