For many years, USCIS has adjudicated EB 1A petitions using what it calls a “two-step” process. Under this approach, USCIS first determines whether the petitioner submitted evidence that satisfies at least three of the ten criteria listed in the EB 1A regulation at 8 C.F.R. § 204.5(h)(3), unless the petitioner relies on a single major internationally recognized award. This first step is largely evidentiary and focuses on whether the submitted documents fit within the regulatory categories, such as awards, published material, judging the work of others, original contributions, or leading roles in distinguished organizations.
If USCIS finds that the petitioner meets three or more of these regulatory criteria, the agency then proceeds to a second step known as the “final merits determination.” At this stage, USCIS evaluates the evidence in the aggregate and decides whether, in its view, the petitioner has demonstrated sustained national or international acclaim and has risen to the very top of the field. In practice, this second step has often resulted in denials even when USCIS expressly acknowledges that the petitioner satisfied the required number of regulatory criteria.
Under this two-step framework, USCIS has frequently denied EB 1A petitions by concluding that, despite meeting three or more criteria, the petitioner did not demonstrate sufficient “sustained” acclaim, did not remain at the top of the field for a long enough period, or did not show recent recognition after a particular year. These conclusions were often stated in general terms, without identifying a clear or objective standard for what level of recognition would be sufficient or where such a requirement appears in the statute or regulations.
USCIS has justified this approach by relying on Kazarian v. USCIS, a 2010 decision by the Ninth Circuit Court of Appeals. Over time, USCIS treated Kazarian as authority for a mandatory two-step adjudication process and incorporated the final merits determination into its policy guidance. However, Kazarian itself did not amend the statute or regulations, nor did it authorize USCIS to impose new substantive eligibility requirements beyond those already codified. Nonetheless, the final merits determination became a common basis for denial, creating a situation where meeting the regulatory criteria was treated as necessary but not sufficient.
In January 2026, a federal court directly addressed the legality of this practice in Mukherji v. Miller, decided by the United States District Court for the District of Nebraska. In that case, USCIS denied an EB 1A petition after acknowledging that the petitioner satisfied multiple criteria under 8 C.F.R. § 204.5(h)(3). The denial was based entirely on the final merits determination, with USCIS asserting that the petitioner lacked sustained national or international acclaim after a certain point in time.
The court rejected USCIS’s approach and held that the agency acted unlawfully. The court explained that the final merits determination, as applied by USCIS, is not grounded in the statute or the regulations and was never adopted through the notice and comment rulemaking process required by the Administrative Procedure Act. The court further found that USCIS acted arbitrarily and capriciously by relying on vague, unarticulated standards and by effectively imposing a requirement that the petitioner continuously receive recognition or awards, despite the absence of any such requirement in the statutory scheme.
Importantly, the court emphasized that USCIS may not impose additional eligibility requirements that Congress did not enact and may not deny petitions based on subjective impressions without articulating a clear legal standard. The court also noted that USCIS failed to acknowledge or justify its departure from long-standing adjudicatory practice. As a result, the court vacated the denial and ordered USCIS to approve the petition, concluding that there was nothing left for the agency to reconsider.
The implications of this decision are significant. The Mukherji ruling clarifies that while USCIS may evaluate evidence carefully, it may not deny an EB 1A petition after conceding that the regulatory criteria are met by relying on an extra-regulatory final merits determination that lacks legal grounding. Going forward, this decision provides strong support for the position that if a petitioner satisfies the evidentiary requirements set forth in 8 C.F.R. § 204.5(h)(3), USCIS must base any denial on a clear statutory or regulatory deficiency, not on an undefined or subjective assessment of final merit.
Simply stated, the new ruling reinforces that the EB 1A regulations mean what they say. Meeting the required criteria matters, and USCIS may not move the goalposts by inventing additional hurdles after the fact. For EB 1A applicants, this represents a meaningful step toward fairer, more predictable adjudications grounded in the law as written.
