EB-1A Final Merits Determination: The Kazarian Test and the 2026 Mukherji Ruling

Every EB-1A petition clears (or fails) two separate hurdles, not one. The first — satisfying 3 of the 10 regulatory criteria — is the part most guides focus on. The second, the final merits determination, is where most denials actually happen, and it just became the subject of a significant federal court ruling.

Where the two-step test comes from

The two-step framework is not in the statute or the regulations. It comes from Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) — a case where the Ninth Circuit held that USCIS’s Administrative Appeals Office had improperly imported extra requirements into its evaluation of the 10 regulatory criteria themselves. The court’s fix was to separate the analysis into two distinct steps:

1. Step one — the counting exercise. Does the evidence submitted meet the plain terms of at least 3 of the 10 criteria at 8 CFR 204.5(h)(3)? At this stage, USCIS is only supposed to check whether the evidence fits the category — not judge how impressive it is.
2. Step two — the final merits determination. Having passed step one, does the petitioner’s evidence, considered in totality, show that they have “sustained national or international acclaim” and are among “that small percentage who have risen to the very top of the field of endeavor”?

USCIS formally adopted this framework in Policy Memo PM-602-0005, “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions” (December 22, 2010), and it has since been folded into the USCIS Policy Manual, Volume 6, Part F, Chapter 2. It applies not just to EB-1A extraordinary ability but, by USCIS’s extension, to EB-1B outstanding professor/researcher and EB-2 exceptional ability petitions as well.

Step two is where most technically-qualifying petitions get denied: satisfying 3 criteria is a floor, not a guarantee, and USCIS has wide discretion in deciding whether the overall record shows genuine top-of-field acclaim.

The January 2026 Mukherji v. Miller ruling

Anahita Mukherji, an Indian journalist, filed an EB-1A petition and — per USCIS’s own concession — satisfied 5 of the 10 regulatory criteria, well past the 3 required. USCIS denied the petition anyway at the final merits stage, finding that her acclaim was not sufficiently “sustained” or “recent.”

Mukherji sued. On January 28, 2026, Judge Joseph Bataillon of the U.S. District Court for the District of Nebraska ruled against USCIS on two independent grounds:

• APA rulemaking defect. The final merits determination functions as a binding legislative rule, but USCIS adopted it through an internal policy memo rather than the notice-and-comment rulemaking the Administrative Procedure Act requires for rules with that kind of legal effect.
• Arbitrary and capricious. The agency’s imposition of an unwritten “recency” requirement — that acclaim be current, not just historically demonstrated — appears nowhere in the statute or regulations, and USCIS failed to justify this as a reasoned change from decades of prior practice, as required under Encino Motorcars, LLC v. Navarro.

The court didn’t just remand the case for reconsideration — it vacated USCIS’s denial and ordered the agency to approve Mukherji’s I-140 outright.

What actually changed after the ruling — and what didn’t

This is the part most coverage of the ruling glosses over, and it matters more than the headline:

• USCIS appealed, then withdrew. The government appealed to the Eighth Circuit, then withdrew that appeal on June 10, 2026. That lets the Nebraska decision stand — but only as a single district court ruling, not binding circuit precedent that applies nationwide.
• The AAO has declined to follow it. In subsequent cases, USCIS’s Administrative Appeals Office has taken the position that the two-step Kazarian process is an interpretive rule (which doesn’t require notice-and-comment), not a legislative one, and that it answers to published courts of appeals decisions rather than one district judge in Nebraska. Practically: the final merits determination remains standard operating policy inside USCIS today.
• It’s real ammunition in federal court, not at the AAO. If you appeal a final-merits denial to the AAO citing Mukherji alone, expect it to fail. Where Mukherji has teeth is if you file your own APA challenge or mandamus action in federal district court after a denial — especially if your fact pattern echoes hers (clearing 3+ criteria by a comfortable margin, denied anyway on a vague “recency” or “sustained acclaim” rationale).

What this means if you’re filing or have been denied

If you’re preparing to file: treat the final merits determination as fully in force. Don’t build a case that just barely clears 3 criteria — build one that would survive a skeptical holistic review: quantify your impact wherever possible, get independent expert letters that explicitly compare your standing to others in the field (not just describe your work favorably), and make sure your evidence of acclaim is recent, not concentrated in a single past period.

If you were denied on final merits grounds: an AAO appeal citing Mukherji alone is unlikely to change the outcome, since the AAO has already signaled it won’t follow the ruling outside that one case. The more viable path — and one that requires an immigration attorney — is a federal district court challenge, ideally after preserving the APA objection on the record as early as your RFE or NOID response, not for the first time after final denial.

Bottom line: Mukherji v. Miller is a genuine crack in the legal foundation of the final merits determination, but it has not (yet) changed how any individual case gets adjudicated at USCIS or the AAO. Until a court of appeals rules on the question, it’s a tool for litigation strategy, not a basis for assuming your case will be treated differently at the agency level.

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