On January 28, 2026, a federal court in Nebraska issued a landmark decision that directly challenges one of USCIS’s most entrenched EB-1A adjudication practices, the so-called “Final Merits Determination” derived from Kazarian vs. USCIS. The ruling has significant implications for extraordinary ability applicants and raises serious questions about the legality of USCIS’s long-standing two-step framework.
Background: What Is the Kazarian Framework?
For more than a decade, USCIS has adjudicated EB-1A petitions using a two-step analysis rooted in Kazarian vs. USCIS, 596 F.3d 1115 (9th Cir. 2010).
Under this approach:
1. Step One (Threshold Review): USCIS determines whether the petitioner has submitted evidence of either a one-time major internationally recognized award or evidence satisfying at least three of the ten regulatory criteria listed under 8 C.F.R. § 204.5(h)(3).
2. Step Two (Final Merits Determination): Even if the petitioner meets the regulatory criteria, USCIS conducts an additional, discretionary assessment to determine whether the totality of the evidence demonstrates:
● sustained national or international acclaim, and
● that the petitioner is among the small percentage at the very top of the field.
While USCIS has treated this second step as essential, critics have long argued that it lacks clear standards, invites subjective adjudication, and exceeds the scope of the governing regulation.
Overview of the Case: Mukherji vs. Miller
In Anahita Mukherji vs. Loren K. Miller, et al. (Case No. 4:24-cv-03170), U.S. Senior District Judge Joseph F. Bataillon of the District of Nebraska addressed the legality of USCIS’s two-step framework.
The plaintiff, Anahita Mukherji, an Indian national journalist, filed an EB-1A I-140 petition on March 8, 2024. USCIS acknowledged that she satisfied at least three regulatory criteria, but denied the petition on the ground that she failed to demonstrate sustained national or international acclaim since 2015.
Ms. Mukherji challenged the denial under the Administrative Procedure Act (APA), arguing that USCIS’s reliance on the “Final Merits Determination” was unlawful.
Issue Before the Court
The central issue was not whether Ms. Mukherji qualified for EB-1A classification, but whether USCIS lawfully created and applied the two-step adjudication framework, particularly the second-step “Final Merits Determination.”
In other words, the court examined whether USCIS had the legal authority to impose an additional evidentiary requirement beyond what is expressly stated in 8 C.F.R. § 204.5(h)(3).
Court’s Analysis: Why the Two-Step Framework Failed
The court concluded that USCIS’s adoption of the “Final Merits Determination” was procedurally and legally defective under the APA.
Key findings included:
- The two-step framework was not established through “notice and comment rulemaking”, as required by 5 U.S.C. § 553.
- USCIS relied on internal policy memoranda which were first issued years after the regulation was enacted to impose a new substantive requirement.
- USCIS introduced an additional evidentiary requirement without admitting that it was fundamentally altering its prior adjudication method
- USCIS offered no reasoned explanation for adopting a heightened standard.
- The change was legislative rather than interpretive, meaning it carried legal consequences and required formal rulemaking.
- USCIS had previously characterized the framework as substantive, further undermining its claim that no rulemaking was necessary.
Citing Motor Vehicle Manufacturers Ass’n vs. State Farm and Encino Motorcars, LLC v. Navarro, the court emphasized that agencies must provide reasoned explanations when changing established policy which USCIS failed to meet.
The Court’s Verdict
Judge Bataillon held that USCIS acted in an arbitrary and capricious manner and that the two-tier analysis “was not valid at its inception.”
Critically, the court found that:
- USCIS articulated no objective or discernible standard explaining why the petitioner failed the second step.
- The “Final Merits Determination” lacked legal force due to the absence of required rulemaking.
- USCIS failed to follow mandatory procedural safeguards under the APA.
Rather than merely remanding the case for further review, the court vacated the denial and ordered USCIS to approve the petition, a remedy that underscores the seriousness of the agency’s procedural violations.
What This Means for EB-1A Petitions Going Forward
This decision represents a significant development for EB-1A applicants. While it does not lower the statutory standard for extraordinary ability, it directly challenges USCIS’s ability to deny petitions based on vague, discretionary second-step reasoning untethered from the regulation.
Importantly:
- The ruling highlights the lack of clear, field-specific standards in EB-1A adjudications.
- It strengthens challenges to denials that rely on conclusory “final merits” language.
- Strong cases, particularly those meeting multiple regulatory criteria, stand to benefit the most.
The remedy in Mukherji vs. Miller is especially notable. Litigation did not merely secure another adjudication; it resulted in a court-ordered approval of EB-1A application.
Will USCIS Stop Using the Two-Step Framework?
In the short term, USCIS is unlikely to abandon the two-step framework immediately. Changing course would likely require either formal rulemaking or appellate guidance. However, the decision significantly weakens the agency’s legal footing, particularly in jurisdictions willing to scrutinize APA compliance.
Impact on Past and Future Denials
Since USCIS has relied on the Kazarian framework for nearly two decades, many EB-1A denials issued between 2009 and 2026 may have been based on an unlawful standard.
Immigration attorney Brian Green, who represented the plaintiff, has stated that individuals denied EB-1A petitions during this period may have grounds to challenge those decisions through litigation or motions to reopen.
This ruling, however, does not guarantee approval. But it provides applicants with a powerful legal tool to contest denials rooted in subjective or inadequately explained reasoning.
