January 29, 2026
A recent federal court decision out of Nebraska offers a meaningful — though measured — shift in the EB-1A extraordinary ability landscape.
In Mukherji v. Miller (D. Neb. Jan. 28, 2026), the U.S. District Court vacated USCIS’s denial of an EB-1A petition and remanded the case with instructions to approve. The ruling directly challenges USCIS’s long-standing use of the so-called “final merits determination”, the second step of the Kazarian framework that has increasingly been used to deny otherwise strong EB-1A cases.
What Happened in Mukherji?
In Mukherji, USCIS conceded that the petitioner met five of the ten regulatory EB-1A criteria — well above the required three. Despite that, the agency denied the petition at the “final merits” stage, asserting that the petitioner lacked sustained national or international acclaim.
The court rejected that reasoning.
It held that USCIS’s use of the two-tiered Kazarian framework — and particularly the subjective final merits determination — violated the Administrative Procedure Act (APA) as applied in this case. The court found that USCIS relied on internal guidance that was never lawfully adopted through the required rulemaking process and failed to articulate a clear, reasoned basis for denial. In the court’s words, this was “arbitrary and capricious.”
Why This Decision Matters
- USCIS Cannot Change the Rules Quietly
The court emphasized a foundational principle of administrative law: agencies may change policy, but only if they acknowledge the change and provide a reasoned explanation.
“Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. But the agency must at least display awareness that it is changing position and show that there are good reasons for the new policy.”
Per the Court, USCIS failed to do that here.
- “Final Merits” Denials Require Specific, Legitimate Reasons
The decision squarely addresses a common EB-1A denial pattern we are seeing more frequently:
- USCIS agrees the petitioner meets three or more criteria
- Then denies at final merits using broad, conclusory statements about “sustained acclaim”
- Without explaining what standard applies, what evidence is missing, or why the record falls short
The court made clear that this is not enough:
“If the reviewing officer fails to delineate the specific and legitimate reasons for the denial, then that is an arbitrary and capricious decision.”
- The Law Does Not Require Indefinite Top-of-Field Status
USCIS often frames final merits denials around the idea that an applicant must remain perpetually at the top of their field. The court rejected that outright:
“Nor does the statute say anything about an individual being required to stay indefinitely at the top of their field. The Court finds nothing in the statutory scheme that would support such a finding.”
- The Court Rejected USCIS’s Application of the Two-Step Framework
While Kazarian itself remains good law, the court found that USCIS’s adoption and application of the two-tier system in this context did not follow required law, undermining the agency’s reliance on it to deny the petition.
- Post-Loper Bright, Courts Decide the Law
The decision also sits against the backdrop of Loper Bright, which significantly curtailed Chevron deference. The court noted that questions of law are now firmly within the judiciary’s role — further limiting USCIS’s ability to rely on unexamined internal interpretations.
What This Does — and Does Not — Do
This decision does not automatically change EB-1A adjudications nationwide. USCIS has not revised its policies, and Kazarian has not been overturned.
However, Mukherji provides powerful authority for challenging EB-1A denials where:
- USCIS concedes the regulatory criteria are met
- The denial rests on vague or shifting “final merits” reasoning
- The agency fails to explain what more was required
It offers a clear roadmap for RFEs, NOIDs, AAO appeals, and federal court litigation grounded in the APA.
Our Perspective
At Wildes & Weinberg, we pride ourselves on honest, professional, and zealous representation. Extraordinary ability is not a one-size-fits-all concept. Journalists, researchers, entrepreneurs, and business leaders demonstrate acclaim in different ways — and that evidence should be evaluated under the law, not dismissed by an undefined assessment.
Mukherji reinforces a core principle: agency discretion has limits. When USCIS agrees the criteria are met, it must explain — clearly and lawfully — why a petition still fails.
This decision is not the end of the fight, but it is a significant step in the right direction.
Please note that this is a developing story, as the government can still appeal the decision. If you have any questions on this or EB-1s in general, contact us at josh@wildeslaw.com.