EB-1A Final Merits Ruling: Mukherji v. Miller (Nebraska)

The EB-1A category and the two-step review

EB-1A is the first-preference employment-based green card category for people of extraordinary ability in the sciences, arts, education, business or athletics. Under 8 CFR 204.5(h)(3), a petitioner meets the evidence requirement with a one-time achievement, a major internationally recognized award, or with evidence of at least three of ten listed criteria. The regulation also allows comparable evidence if the criteria do not readily apply (8 CFR 204.5(h)(4)). The petitioner must show sustained national or international acclaim (8 CFR 204.5(h)(2)).

Since 2010 USCIS has used a two-step method based on Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). In step one the officer decides whether the evidence meets at least three criteria. In step two, the “final merits determination,” the officer looks at all of the evidence and decides whether it shows sustained acclaim. The USCIS Policy Manual (Volume 6, Part F, Chapter 2) states this method and says the standard of proof is the preponderance of the evidence.

What the Nebraska court decided

In Mukherji v. Miller, No. 4:24-cv-03170 (D. Neb. 28 January 2026), the court reviewed a denial of an EB-1A petition. USCIS had found that the petitioner met five of the ten criteria and denied the petition at the final merits step. The court held:

• The final merits determination is not in the statute or the regulation. USCIS introduced it through a 2010 policy memorandum, and it works as a substantive rule.
• A substantive rule needs notice-and-comment rulemaking under the Administrative Procedure Act (5 U.S.C. 553). USCIS did not complete it. A 1995 proposed rule that treated the same change as substantive was never finalized.
• USCIS also changed a practice that had lasted nearly twenty years without acknowledging or explaining the change, so the policy was arbitrary and capricious.
• The court reviewed the legal question itself and did not defer to the agency’s reading.
• The statute and the regulations do not require continuing awards or recognition year after year.

The remedy: the denial was set aside

The court vacated the denial and sent the case back to USCIS with instructions to approve the petition. It reasoned that, once the final merits step was set aside, USCIS had found no other ground for denial.

What the ruling does not do

• It binds only the parties to the case. A district court decision is not a precedent for other judges or for USCIS in other cases. A petitioner may cite its reasoning, and a court may or may not find it persuasive.
• It did not change the regulation. The three-of-ten criteria test and the sustained-acclaim standard in 8 CFR 204.5(h) still apply.
• It did not end USCIS’s use of the final merits step. The Policy Manual still describes it, and the Manual shows no change after January 2026.
• It has not been reviewed by an appeals court. The government appealed to the Eighth Circuit (No. 26-1578) on 27 March 2026 and the appeal was dismissed on the government’s own motion on 10 June 2026.

A different result in the same district

In Agarwal v. Miller, No. 4:26-cv-03049 (D. Neb. 25 September 2026), the Chief Judge dismissed an EB-1A challenge with prejudice. The court followed its own earlier decisions in other EB-1A cases and declined to follow Mukherji. Two judges in one district have therefore disagreed, which shows how unsettled the question is.

What this means for EB-1A petitioners

A petitioner who is preparing an EB-1A case can build the file for both steps of the review. The evidence should meet at least three criteria, and the full record should also show sustained acclaim. A petitioner who was denied only at the final merits step can ask an attorney whether a new petition, a motion, an appeal or a lawsuit in federal court is an option. The ruling does not reopen past denials by itself. Deadlines to appeal, to move to reopen or to sue depend on the type of filing and the date of the decision, so a petitioner should check them early. The result in each case depends on the facts and on the court.