EB1A Final Merits Determination Overturned? What Mukherji v. Miller Means for Extraordinary Ability Applicants

As one of the best-known pathways for obtaining EB1A Extraordinary Ability visa in the USA for professionals of exceptional ability, the EB1A (Extraordinary Ability) visa has had a strong record of success over the last 30+ years, owing primarily to the fact that it has provided a pathway through which to obtain permanent residency (green card) without the necessity of having an employer sponsor the application process. Although the law provides a straightforward pathway to permanent resident status, USCIS’s interpretation and application of that law have created a significant disparity in the number of people who have successfully obtained an EB1A visa over time. EB1A final merits determination is one of the criteria that USCIS uses to evaluate EB1A petitions.

In recent years, there has been increasing dissatisfaction from scientists, company owners/founders, doctors, and researchers due in large part to the increased scrutiny applied to EB1A applications by USCIS and how that scrutiny has led to EB1A final merits determination, even when applicants had submitted sufficient evidence of their qualifications/evidence to satisfy the statutory requirements.

Then came the Mukherji v. Miller EB1A ruling, a case established by the EB1A Nebraska district court decision that challenged how USCIS interpreted and applied the law regarding final merit determinations. This ruling has generated tremendous interest in EB1A immigration news 2026 and in how it will affect the future of EB1A cases, given the possibility of changes to the standards USCIS applies in deciding them.

In this article, we will review and analyze the Mukherji v. Miller ruling, how it will affect EB1A applicants, and what applicants can expect in the future regarding EB1A applications.

Read More: EB1A in 2025: Trends, Standards, and the Secrets Behind Successful Applications

II. What Is the EB1A Extraordinary Ability Visa?

The EB1A extraordinary ability visa is a type of Visa issued to people who can prove they have long-term, sustained reputation in their profession nationally and/or internationally in areas like science or arts (performing, visual, fine), business, athletics & education.

• Often called the “extraordinary ability green card”, this visa allows the applicant to:
• Petition on their own (no employment sponsor needed)
• Skip Labor Certification
• Use the Premium Processing option
• Have better chances of a shorter wait for their petition (shorter waits) than people applying in other categories.

Who Typically Qualifies?

• Researchers with a high number of citations or publications
• Entrepreneurs or business owners who have received a significant amount of media attention for their business
• Healthcare providers who are doing innovative or ground-breaking research
• Artists who have exhibited work at international venues
• Engineers or mechanical professionals who have worked on significant or impactful industries.

EB1A Vs. EB2-NIW Vs. O1A

Feature	EB1A	EB-2 NIW	O-1A
Green Card	Yes	Yes	No
Employer Required	No	No	Yes
Standard	Extraordinary Ability	National Importance	Extraordinary Ability (temporary)
Self-Petition	Yes	Yes	No

III. Understanding the Kazarian Two-Step Analysis

Kazarian v. USCIS established the modern EB1A adjudication standards and created the Kazarian two-step analysis EB1A that USCIS uses to evaluate EB1A eligibility.

Step One – Meeting at Least Three Regulatory Criteria

To determine whether the applicant meets at least three of the ten EB1A approval criteria, USCIS assesses the application.

Some examples of the EB1A criteria include:

• Original contributions to the arts or sciences
• Published material about the person, i.e., other people writing about you
• Authorship of published scholarly articles
• Judging others’ work in your field
• Serving as a leader/critical member of a prestigious organization
• Salary vs. peers in similar positions

Some examples of supporting documents the applicant submits include:

• Citation reports
• Media publications
• Expert letters
• Patent filings
• Salary surveys
• Conference invitations

If the applicant meets three of the criteria, USCIS will continue processing the application.

Step Two – The Final Merits Determination

The second stage of the USCIS final merits review for EB1A is completed by reviewing the evidence as a whole to determine whether it demonstrates sustained international acclaim and is consistent with being in the top tier globally..

This is where the problems began.

This step was intended to be an overall review; however, there were many cases in which the Officer would review and reweight the evidence submitted at Step One. Cases in which petitioners clearly met three or more EB1A criteria continued to be denied, as USCIS concluded the petitioners were not “extraordinary enough”.

This interpretation has dramatically changed EB1A Evidence standards, resulting in unpredictable outcomes. As a result, strong EB1A cases have been denied, even though they met all regulatory requirements.

IV. Why the EB1A Final Merits Determination Became So Controversial

Time has shown a number of emerging trends:

• EB1A RFE and denial increase
• Increased quantitative benchmarking requirements
• Greater scrutiny of independent experts
• A move to retroactively shift evidence expectations

Those who applied noted that the benchmarks were always changing. After demonstrating the accepted EB1A petition requirements, many received extensive RFEs requesting additional proof of international recognition.

EB1A final merits determination lacks sufficient transparency to assist attorneys and applicants in determining anticipated outcomes. Applicants, including scientists with demonstrated histories of publishing scientific articles and founders with significant media exposure, have received different decisions.

The uncertainty around the legal standards of the EB1A category has led to what many are now calling an expanding landscape of ‘EB1A legal challenge’.

V. Mukherji v. Miller Explained: What the Court Actually Ruled

A federal court’s examination of USCIS’s denial of an EB1A petition in Mukherji v. Miller was the Turning Point.

The background of the case

The Petitioner met many of the regulatory EB1A eligibility criteria. However, at the final merits stage of adjudicating their petition, USCIS denied it, finding that the evidence did not demonstrate sustained acclaim for the petitioner.

The Applicant filed a lawsuit against the denial in federal court.

Key Arguments

The Petitioner asserted:

• The USCIS improperly reweighed evidence that had already been approved.
• The USCIS applied standards not found in the regulations.
• The denial violated the APA.

Court’s Conclusion

A federal court, widely reported by legal commentators, held that USCIS exceeded its statutory authority and that its final merits decision was arbitrary and capricious under the APA.

The federal court overturns EB1A denial is an EB1A litigation success.

The federal court did not abolish the Kazarian framework as applied; it analyzed USCIS final merits review EB1A.

The Judge’s Order

The EB1A Nebraska district court decision demonstrates that discretionary authority has limits, as evidenced by USCIS being required by a court order to approve the petition rather than remanding it for further consideration. 

This finding regarding the discretionary authority of USCIS regarding EB1A case review is now central to discussions about future EB1A court ruling 2026 and possible future USCIS EB1A policy change.

VI. Does This Ruling End the EB1A Final Merits Determination?

To put it simply: no.

The district court’s decision in Mukherji v. Miller ruling EB1A is not directly enforceable in all jurisdictions.

However:

• This ruling provides persuasive authority.
• It could impact future litigation.
• It suggests skepticism on the part of the judiciary regarding the aggressive use of EB1A final merits determinations.

The USCIS could:

• Change its internal procedures.
• Publish new policy memo’s.
• Continue to defend its interpretation of the statute in other circuits.

Although the final merits ruling in EB1A technically still exists, the way it has been applied will likely now face increased scrutiny.

VII. How EB1A Adjudication Standards May Change in 2026

If the current trends continue, we may see changes to EB1A adjudication standards again in 2026.

Here are some possible changes:

1. Reduced Overreach when Performing Final Merits Review

These officers could better focus on the statutory language of the EB1A provisions as opposed to benchmarking against subjective criteria.

2. Stronger Focus on Regulatory Requirements

When three or more criteria are clearly demonstrated to be satisfied they will carry a greater weight.

3. Structured Objectivity for Verifying Evidence

By training internal staff, citations, media, and salary verification may be applied uniformly throughout the evaluation procedure.

4. Continued Importance of a Narrative Reporting Process

The importance of using cohesive storytelling should not change, even if there are future agency policy changes.

The larger immigration bar community is watching with great interest how EB1A will evolve in 2026.

VIII. What This Means for Extraordinary Ability Applicants

New Filers

Those individuals that will be filing EB1A for the first time may benefit by:

• Relying on more objective standards.
• Documenting strategically so that regulatory language is used.
• Clearly articulating their sustained acclaim.
• Providing evidence to support each of the EB1A regulatory criteria instead of only relying on prestige.

Previously Denied Filers

Individuals that previously filed an EB1A application and were denied at the final merits review will be able to:

• Refile using stronger supporting documentation.
• Potentially file motions to reopen the denied case (in limited cases).
• Seek litigation if their denial was egregious.

As demonstrated from the recent EB1A court ruling 2026, the courts are becoming more receptive to the agency’s discretion and to judicial review.

IX. How to Prepare a Strong EB1A Petition After Mukherji v. Miller

No matter how optimistic things are, preparation is always a critical factor to success.

1. Documentation Based on Criteria First

Exhibits need to be organized under each criteria found in the regulation.

2. Objective Evidence Hierarchy

Evidence Type	Strength Level
Independent media coverage	High
Citation metrics	High
Patent commercialization proof	High
Internal letters only	Moderate

3. Letters from Independent Experts

Well written independent letters provide tremendous power.

4. National Impact Framing

Be clear in explaining how your contributions will impact the larger field.

5. Exhibit Consistency

Your resume, letters of recommendation, and metrics need to not contradict each other.

When submitting evidence for your EB1A petition, you have to be very precise and clear about everything.

Meeting EB1A evidence standards requires precision and clarity.

X. Common misconceptions after the decision was issued:

Myth 1 – “EB1A is now automatic”.

False. The standard as established in the law still remains high and difficult to meet.

Myth 2 – “No need for expert letters”.

False. Independent experts are still necessary to support/confirm your contributions.

Myth 3 – “Having met 3 criteria guarantees approval”.

Not necessarily so. If courts will evaluate your claim if the use of the final merit analysis. You must prove substantial sustaining recognition.

XI. Conclusion

The Mukherji v. Miller EB1A ruling represents an important moment in the evolution of EB1A adjudication standards. It highlights that discretion must operate within statutory limits. Yet the threshold for extraordinary ability remains high.

For applicants, the takeaway is balanced optimism. The EB1A final merits determination may face closer judicial scrutiny, but approval still depends on rigorous documentation and strategic presentation.

As developments unfold in EB1A immigration news 2026, thoughtful preparation — not assumptions — will remain the strongest path forward.

XII. FAQs

What is the EB1A final merits determination and why was it controversial?

It is the second step of the Kazarian framework where USCIS evaluates overall acclaim. It became controversial because officers often reweighed evidence and applied subjective standards.

How does the Mukherji v. Miller ruling impact EB1A adjudications?

The ruling challenges aggressive use of the final merits stage and reinforces limits on agency discretion under the APA.

Does this court decision eliminate the Kazarian two-step analysis for EB1A?

No. It questions how the second step is applied, not the entire framework.

Will USCIS change EB1A approval standards after Mukherji v. Miller?

Possible policy clarifications may occur, but no formal nationwide changes have been announced.

Can previously denied EB1A petitions be reconsidered after this ruling?

In some cases, refiling or litigation may be options, depending on facts and timing.

How should extraordinary ability applicants prepare EB1A petitions in 2026?

Focus on objective documentation, structured presentation, and clear evidence of sustained acclaim.

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