Federal Court Finds EB-1A Final Merits Analysis Policy Unlawful

On January 28, 2026, a decision was issued by the U.S. District Court in Nebraska that could have a significant, positive impact on EB-1A extraordinary ability petitions.

The case, Mukherji v. Miller (No. 4:24-cv-03170-JFB-RCC, Memorandum and Order (D. Neb. Jan. 28, 2026)), was decided on January 28, 2026, by a federal judge in Nebraska. It granted summary judgment to an EB-1A petitioner and set aside USCIS’s denial, concluding that USCIS unlawfully adopted the “two-step” EB-1A analysis, including USCIS’s “final merits determination,” without the notice-and-comment rulemaking the Administrative Procedure Act (APA) requires. The court vacated the denial and ordered USCIS to approve the petition.

In this post, we will take a look at the background, the court’s reasoning and holding, and why this decision matters for people pursuing EB-1A extraordinary ability petitions.

Background of the Mukherji v. Miller Case

The plaintiff, Anahita Mukherji, a national of India, filed an I-140 EB-1A extraordinary ability petition based on her work as a journalist. USCIS found that Ms. Mukherji met five of the ten regulatory evidence categories. Notably, the regulations only require that the applicant meet three of the ten criteria. Nonetheless, USCIS denied the petition, applying what they call a “final merits analysis” that invites the USCIS officer to make a subjective analysis as they consider whether the applicant is “one of a small percentage who has risen to the very top of her field.”

As background, the relevant regulation, 8 C.F.R. § 204.5(h), defines extraordinary ability as being among a “small percentage who have risen to the very top of the field of endeavor” and lists ten evidentiary criteria (or comparable evidence) where meeting at least three can satisfy the evidentiary framework. Under current USCIS practice, this is referred to as “Step 1” of the two-step analysis.

On top of this first step, USCIS typically also applies an additional analysis, called a “final merits analysis” or “Kazarian analysis” that evaluates the evidence in its totality and asks whether the applicant has risen to the very top of their field. To be clear, this additional step does not appear in the statute or regulations, and was adopted by USCIS in 2010 through an internal policy memorandum.

Before now, courts had broadly upheld this two-tier analysis because, under the 1984 Supreme Court case Chevron v. Natural Resources Defense Council, Inc., courts generally deferred to the government agency (in this case USCIS) when interpreting a vague or ambiguous law. But in 2024, the Supreme Court overturned Chevron in a case called Loper Bright Enterprises v. Raimondo. This brings us to Ms. Mukherji’s case in Nebraska.

The Court’s Reasoning and Holding on EB-1A Final Merits Analysis

In Mukherji, the court focused on whether USCIS lawfully created and used the two-step process, including the final merits determination. The court ultimately held that the two-step process was not lawful, following the reasoning summarized below.

The court observed that, in the 1990s, USCIS (known as INS at the time) began a rulemaking process that would have created a two-step process that adds a step beyond what the regulations require. However, that process was never finalized. Years later, in 2010, USCIS implemented a similar two-step approach through policy memoranda without going through the necessary notice-and-comment procedures established in the Administrative Procedure Act (APA). The court held USCIS acted arbitrarily and capriciously by adopting this long-term, nationwide shift without following the notice-and-comment procedures, without clearly acknowledging it was changing position, and without supplying a reasoned explanation.

Finally, the court acknowledged that, under the 2024 Supreme Court decision in Loper Bright, courts must exercise independent judgment on questions of law and can no longer simply defer to the agency in question (here USCIS) when a law is ambiguous.

The Remedy Ordered by the Court

So, what was the impact of the court’s decision on Ms. Mukherji’s EB-1A petition? In a notable move, the judge did not send the petition back to USCIS to reconsider. Instead, he vacated the denial and remanded with instructions to approve the petition, saying there was nothing else left for the agency to do.

Strategic Insights: Moving Forward with Your EB-1A Petition

USCIS frequently denies EB-1A petitions by saying a petitioner “meets three criteria” but still fails the “final merits determination.” In Mukherji, the court held that USCIS adopted that second-step framework without required rulemaking, and its use is unlawful. This decision represents a major shift in how extraordinary ability is adjudicated.

If you are in the process of preparing an EB-1A petition or responding to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), it may be worth highlighting Mukherji and making clear that USCIS’s two-tier analysis has been found to be unlawful. While this decision, being issued by the U.S. District Court in Nebraska, is not binding across the country, it is persuasive and relevant, and should encourage USCIS to not rely on its two-tier analysis when deciding an EB-1A petition.

Also, since the Supreme Court overruled Chevron through its 2024 Loper Bright decision, it is likely that other courts will adopt similar reasoning to that applied by the court in Mukherji. It could only be a matter of time before USCIS is legally bound to follow regulations and abandon its two-step analysis.

Because navigating EB-1A Final Merits Analysis requires a tailored strategy in light of these federal court developments, we invite you to schedule a consultation to discuss your specific case. You can also sign up for free webinars to stay updated on EB-1A trends, download our free EB-1A guide on extraordinary ability criteria, and browse our library of articles for more in-depth legal analysis.