Mukherji v. Miller Raises New Questions About The Kazarian-Based EB-1A "Final Merits" Step

On January 28, 2026, a federal court in Nebraska overturned the United States Citizenship and Immigration Services (USCIS)'s denial of an EB-1A extraordinary ability petition in Mukherji v. Miller and sent the case back to USCIS with instructions to approve it. The decision questions the way USCIS commonly evaluates EB-1A petitions after an applicant has already met the required EB-1A criteria.

How EB-1A Decisions Are Made

Most EB-1A cases follow a two-part review:

1. The checklist step:
   1. USCIS decides whether the evidence fits at least three of the listed EB-1A criteria (or one major award).
2. The bigger-picture step:
   1. USCIS then decides whether, looking at everything in totality, the person has extraordinary ability and sustained recognition.

This second step is often called the “final merits” review. It is frequently where USCIS denies cases even when it agrees the applicant met three (or more) criteria.

Kazarian v. USCIS is often cited in EB-1A practice for the idea that meeting the criteria is important, but USCIS can still take a step back and evaluate the full record. Over time, USCIS has treated Kazarian  as support for the two-part approach described above, including a formal “final merits” review.

What Mukherji Held (and why it matters)

In Mukherji, USCIS agreed the petitioner met five EB-1A criteria but still denied the case at the “final merits” stage. The court disagreed with USCIS and ruled for the petitioner.

The most important part of the decision focuses on process. The court said that USCIS built and applied a mandatory second-step “final merits” framework through internal guidance (policy memos and similar materials), rather than through a formal public rulemaking process, as required by the Administrative Procedure Act. The court's point was simple: If the agency is effectively creating a new, required step that changes how cases are decided, the public should generally have notice and an opportunity to comment.

Practical Impacts for EB-1A Petitioners

Practice Pointer 1: Final merits is still the battleground, but petitioners may have sharper procedural arguments.

USCIS is unlikely to stop using a “final merits” review immediately. For now, EB-1A filings should still be written to win both steps: the criteria and the bigger-picture story of extraordinary ability. That said, for some denials, Mukherji  may give petitioners stronger grounds to argue that USCIS is applying an extra step that was never properly adopted as a binding rule.

Practice Pointer 2: “Not recent enough” reasoning may be easier to challenge

USCIS sometimes denies cases by focusing heavily on whether the applicant's recognition is “recent,” as if extraordinary ability requires constant awards, press, or headlines year after year. Mukherji supports pushing back when USCIS treats “recency” like a hard rule instead of evaluating whether the person's influence and recognition have remained meaningful over time.

Practice Pointer 3: To reduce “final merits” risk, it helps to clearly separate:

• The evidence that satisfies each criterion, and
• A simple, persuasive narrative that ties the evidence together (impact, leadership, influence, independent recognition, and why the record shows sustained acclaim)

Practice Pointer 4: Expect uneven outcomes by jurisdiction

Mukherji is one district court decision and could be appealed. It does not automatically change EB-1A adjudications nationwide. Different courts may agree or disagree. Still, it may influence strategy for applicants considering challenges after a denial.

What to Watch

• Whether the government appeals the decision (and what the next court says).
• Whether other federal courts adopt similar reasoning.
• Whether USCIS responds by changing guidance or starting formal rulemaking to strengthen its position.

Action items

For new EB-1A filings

• Build a clear timeline that shows sustained recognition and ongoing influence.
• Support recommendation letters with independent proof whenever possible (published sources, objective metrics, third-party recognition).
• Make the “big picture” easy for a non-expert reader: why your work matters, who relies on it, and how you are recognized at a high level.

For recent EB-1A denials

If USCIS agreed you met at least three criteria but denied at “final merits,” especially with vague reasoning or a heavy focus on “recency,” schedule a consultation with a Fennemore Immigration Lawyer to evaluate next steps, including whether a federal court challenge is a good fit for your situation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.