The EB-1A Final Merits Split: One Court Said No, Six Said Yes, and Approvals Fell to 32%
In January 2026, a federal judge in Nebraska ruled that USCIS's EB-1A final merits determination was adopted unlawfully and ordered an extraordinary-ability petition approved. Since then, at least six other federal decisions have upheld the same two-step test, the government dropped its appeal, and USCIS still applies it. Meanwhile, the EB-1A approval rate fell to 32.2% in April–June 2026, the lowest of the 11 quarters of USCIS data since October 2023.
EB-1A approval rate by quarter
Approved ÷ (approved + denied), Form I-140, Alien of Extraordinary Ability (E11)
What the EB-1A final merits step is
The EB-1A category is for people with "extraordinary ability" shown by "sustained national or international acclaim" (8 U.S.C. § 1153(b)(1)(A)). The regulation defines extraordinary ability as expertise showing the person is "one of that small percentage who have risen to the very top of the field of endeavor," and lists ten types of evidence. A petitioner needs a one-time major international award or at least three of the ten criteria (8 C.F.R. § 204.5(h)(2)–(3)).
After the Ninth Circuit's 2010 decision in Kazarian v. USCIS, USCIS issued a December 22, 2010 policy memorandum (PM-602-0005.1) that split review into two steps. The officer first checks whether the evidence meets at least three criteria, then weighs the whole record in a "final merits determination." Today the USCIS Policy Manual (Vol. 6, Part F, Ch. 2) describes the same process. A petition can clear step one and still be denied at step two.
Mukherji v. Miller: the ruling that broke ranks
Anahita Mukherji, a journalist, met five of the ten criteria, a point USCIS conceded. USCIS denied her petition at the final merits step anyway, concluding that she had not shown sustained acclaim. On January 28, 2026, Senior Judge Joseph F. Bataillon of the District of Nebraska granted her summary judgment and sent the case back "with instructions to approve the petition."
The court held that the 2010 memo changed roughly 20 years of practice. It treated the memo as a legislative rule that needed notice-and-comment rulemaking under the Administrative Procedure Act. Because USCIS did not acknowledge the change or give good reasons for it, the court also found the policy arbitrary and capricious. In the alternative, the court held that this particular denial was arbitrary because the officer applied no articulated standard.
"The Court finds the two-tier analysis was not valid at its inception."Mukherji v. Miller, No. 4:24CV3170, Memorandum and Order at 15 (D. Neb. Jan. 28, 2026)
The government filed a notice of appeal to the Eighth Circuit on March 27, 2026 (No. 26-1578). On June 10, 2026, it moved to dismiss its own appeal, and the court granted the motion the same day. That leaves Mukherji final for Ms. Mukherji, but it creates no appellate precedent and does not bind USCIS in any other case.
Where other federal courts stand
Several later decisions took up the same arguments, often brought by the same lawyers, and rejected them. Pick a case to compare the reasoning.
Mukherji v. Miller
- Petitioner: journalist; USCIS accepted 5 of 10 criteria.
- Held: the 2010 memo was a legislative rule adopted without notice and comment, and an unexplained policy change.
- Result: denial vacated, approval ordered. Government appeal voluntarily dismissed June 10, 2026.
Taneja v. Miller
- Petitioner: lead data scientist; USCIS accepted 3 criteria (judging, scholarly articles, leading role).
- Held: applying its own judgment under Loper Bright, the court found Congress let USCIS define "extraordinary ability," that the regulation's "initial evidence" is necessary but not sufficient, and that the memo is interpretive.
- On Mukherji: noted it "did not explicitly analyze the statute."
- Result: summary judgment for the government.
"'Extraordinary ability' is necessarily more rigorous than 'exceptional ability.'"Taneja v. Miller, No. 24-CV-05657 (E.D.N.Y. June 16, 2026)
Branski v. Brennan Seng
- Petitioner: coachbuilder on an O-1 visa; met three criteria after an earlier court remand.
- Held: USCIS may define the term under its rulemaking authority, the word "initial" signals a further showing, and Loper Bright does not weaken the Fifth Circuit's Amin v. Mayorkas (2022).
- Result: government's motion granted; case dismissed.
"The term 'initial' contemplates that some further showing is required."Branski v. Brennan Seng, No. 25-CV-1695 (E.D. Wis. Aug. 19, 2026)
Agarwal v. Miller
- Petitioner: two EB-1A petitions denied at step two (July 2025 and January 2026).
- Held: the policy matches the statute and regulation and is an interpretive rule; even if it were a change, the 2010 memo explained it adequately.
- A point for petitioners: the court held that a notice-and-comment challenge accrues when USCIS denies your petition, not when the policy issued in 2010, so it was timely under Corner Post (2024).
- Result: motion to dismiss granted.
"…the Court declines to follow Mukherji because it is unsound and unconvincing."Agarwal v. Miller, No. 4:26CV3049 (D. Neb. Sept. 25, 2026)
| Case | Court | Date | Outcome |
|---|---|---|---|
| Nagaiah v. Allen | E.D. Pa. | May 27, 2025 | Upheld |
| Agrawal v. Miller | D. Neb. | Sept. 12, 2025 | Upheld |
| Mukherji v. Miller | D. Neb. | Jan. 28, 2026 | Rejected appeal dropped |
| Taneja v. Miller | E.D.N.Y. | June 16, 2026 | Upheld |
| da Silva Trajano v. USCIS | D. Mass. | July 24, 2026 | Upheld (alternative holding) |
| Branski v. Brennan Seng | E.D. Wis. | Aug. 19, 2026 | Upheld |
| Vernekar v. Miller | D. Neb. | Sept. 8, 2026 | Upheld |
| Cannabrava de Sousa v. Selby | D. Neb. | Sept. 22, 2026 | Upheld (one count; others continue) |
| Agarwal v. Miller | D. Neb. | Sept. 25, 2026 | Upheld |
At the appellate level, the Fifth Circuit upheld the framework in Amin v. Mayorkas, 24 F.4th 383 (2022), and the Ninth Circuit's Kazarian decision is where the two-step approach began. District court decisions bind only the parties before them.
Is this really a "split"?
Technically, yes: judges in the same district disagree, and Agarwal rejected Mukherji by name. In practice, the split is lopsided. Three different Nebraska judges have now ruled on the question, and two of them (Chief Judge Buescher and Judge Rossiter) upheld the framework. Every court outside Nebraska that we found has upheld it too. Because the government withdrew its appeal, the Eighth Circuit never decided the question, so no ruling against the framework carries appellate weight anywhere.
For petitioners, the practical answer matters more than the label: USCIS officers continue to apply the final merits determination, and most courts that review it have agreed they may.
What the USCIS data shows
The court fight is happening while EB-1A outcomes change sharply. USCIS's own quarterly I-140 data shows the extraordinary-ability approval rate holding near 70–75% through the first half of FY2025, then dropping five quarters in a row.
Approval rate by I-140 category, FY2026 Q1–Q3
Same agency, same form, very different outcomes
| Quarter | Received | Approved | Denied | Approval rate | Pending at end |
|---|---|---|---|---|---|
| FY2024 Q1 | 4,704 | 2,928 | 1,067 | 73.3% | 8,088 |
| FY2024 Q2 | 5,364 | 3,112 | 1,263 | 71.1% | 8,992 |
| FY2024 Q3 | 4,331 | 2,857 | 1,225 | 70.0% | 9,210 |
| FY2024 Q4 | 5,767 | 3,334 | 1,148 | 74.4% | 10,586 |
| FY2025 Q1 | 7,370 | 3,227 | 1,091 | 74.7% | 13,526 |
| FY2025 Q2 | 7,277 | 3,402 | 1,276 | 72.7% | 16,093 |
| FY2025 Q3 | 7,471 | 3,508 | 1,765 | 66.5% | 18,081 |
| FY2025 Q4 | 7,464 | 2,331 | 2,033 | 53.4% | 21,157 |
| FY2026 Q1 | 7,814 | 2,164 | 2,394 | 47.5% | 24,785 |
| FY2026 Q2 | 6,646 | 1,720 | 2,394 | 41.8% | 27,126 |
| FY2026 Q3 | 6,036 | 1,348 | 2,832 | 32.2% | 28,874 |
How to read these numbers
Three cautions keep this analysis honest. First, USCIS does not publish why petitions are denied, so the data cannot show how many denials happened at the final merits step rather than at the criteria step. Second, the figures count petitions, not people; someone who refiles appears twice. Third, the approval rate here is approved ÷ (approved + denied) in each quarter, and decisions often concern petitions filed months earlier. What the data does show is that the decline is specific to EB-1A: EB-1B and EB-1C, which use the same form and service centers, stayed between 93% and 98% across all three years.
The backlog matters too. Filings rose from about 20,200 in FY2024 to about 29,600 in FY2025, while quarterly decisions stayed roughly flat, so pending EB-1A petitions more than tripled. For a petitioner, that means longer waits without premium processing and a higher chance of an officer scrutinizing the final merits analysis closely.
Denied at the final merits step? Your options
A denial notice states which step failed. Use this guide to see the general paths. It's a starting point for a conversation with your attorney, not a substitute for one.
Did USCIS agree you met at least three criteria (or a one-time major award) and deny at the final merits step?
No → see Outcome A. Yes → see Question 2.
The fight is over the evidence itself. Look closely at which criteria USCIS rejected and why. Options include a motion to reopen or reconsider, or an appeal to the Administrative Appeals Office (AAO), using Form I-290B within 30 days (33 if the decision was mailed), or a new petition with stronger, better-documented criteria. Arguments based on Mukherji don't help with a step-one denial.
Is it still within 30 days (33 if mailed) of the decision?
Yes → see Outcome B. No → see Question 3.
You can file a motion to reopen (new facts), a motion to reconsider (legal error), or an AAO appeal on Form I-290B. Many petitioners also prepare a new filing in parallel. If federal court review is a possibility later, it's important to build a complete administrative record now, because courts generally review only that record.
Do you have meaningful new evidence of sustained acclaim since you filed, such as new awards, press, high-impact work or leading roles?
Yes → see Outcome C. Not yet → see Outcome D.
A new I-140 that answers the denial's final merits reasoning point by point is often the most practical path. Premium processing is available for EB-1A. Consider whether a parallel EB-2 NIW, or EB-1B if you're a researcher with a qualifying employer, fits your profile.
Federal court review under the Administrative Procedure Act is possible, but most courts have upheld the two-step framework, so a lawsuit attacking the policy itself is an uphill, case-specific choice. Some cases challenge how a particular denial was reasoned instead. Meanwhile, strengthening the record and considering EB-2 NIW, EB-1B or O-1 may be more productive.
How to build an EB-1A petition for the final merits step
The Policy Manual says officers weigh the evidence "in its totality" at step two. It also lists examples of the kind of evidence that can help, none of which is required. Strong petitions answer the step-two question directly instead of leaving the officer to infer it:
- Show "sustained," not just "acclaimed." Recognition should run through recent years, not peak a decade ago. That gap was the reason USCIS gave for denying the petition in Mukherji.
- Benchmark against the field. Citation rates or h-index relative to peers (with the method explained), journal impact, salary percentiles, and rankings of the institutions you work for.
- Corroborate the letters. The Policy Manual stresses that letters of support should be backed by documentary evidence.
- Exceed the minimum. Courts read the regulation's "at least three" as an invitation to show more. Documenting four or five criteria well gives step two more to work with.
- Define the field narrowly and accurately. "Top of the field" is measured against the field you claim. We covered why in narrowing the field of endeavor and where final merits determinations break EB-1A petitions.
If your record is strong but not yet clearly "top of the field," compare your options in our guide to EB-2 NIW vs. EB-1A. EB-2 NIW approvals have also fallen, to 49.1% in FY2026 so far, but it uses a different legal test.
Frequently asked questions
What is the EB-1A final merits determination?
It is the second step of USCIS's two-step review of extraordinary-ability petitions. After confirming the petition meets at least three of ten regulatory criteria (or shows a one-time major award), the officer weighs all the evidence together to decide whether the person has sustained national or international acclaim and is among the small percentage at the very top of the field.
Did a court strike down the EB-1A final merits test?
One did. In Mukherji v. Miller (D. Neb., January 28, 2026), a judge held the 2010 policy was adopted without required notice and comment and ordered that petition approved. At least six other federal decisions since 2025 have upheld the test, and the government dismissed its appeal, so there is no appellate ruling against it.
Does Mukherji v. Miller apply to my EB-1A petition?
Not directly. A district court decision binds the parties in that case. USCIS's Policy Manual, current as of October 27, 2026, still applies the final merits determination, and other judges, including two in the same Nebraska court, have declined to follow Mukherji. You can cite it, but you should not rely on it.
Why are EB-1A approval rates falling?
USCIS data shows the EB-1A approval rate fell from 74.7% in FY2025 Q1 to 32.2% in FY2026 Q3, while EB-1B and EB-1C stayed above 93%. USCIS does not publish denial reasons, so the data cannot say whether the final merits step drives the decline, but the drop is specific to the extraordinary-ability category.
What can I do if my EB-1A was denied at the final merits step?
Within 30 days (33 if mailed) you can file a motion to reopen or reconsider, or an AAO appeal, on Form I-290B. You can also file a new petition that answers the denial's reasoning, consider EB-2 NIW, EB-1B or O-1, or, in some cases, seek federal court review. The right path depends on your record and timing.
Should I file EB-2 NIW instead of EB-1A?
It depends on your profile. EB-2 NIW uses a different test focused on the national importance of your proposed work rather than top-of-field acclaim, and approved its petitions at 49.1% in FY2026 Q1–Q3 versus 40.7% for EB-1A. Some petitioners file both. A qualified attorney can assess which fits your evidence.
Facing an EB-1A decision?
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- USCIS Policy Manual, Vol. 6, Part F, Ch. 2: Extraordinary Ability (current as of Oct. 27, 2026).
- 8 C.F.R. § 204.5(h) and 8 U.S.C. § 1153(b)(1)(A).
- USCIS, Form I-140 by Fiscal Year, Quarter and Case Status: FY2026 Q3, FY2025 Q4, FY2024 Q4.
- Mukherji v. Miller, No. 4:24CV3170, 2026 WL 895708 (D. Neb. Jan. 28, 2026); appeal dismissed, No. 26-1578 (8th Cir. June 10, 2026).
- Agarwal v. Miller, No. 4:26CV3049 (D. Neb. Sept. 25, 2026).
- Taneja v. Miller, No. 24-CV-05657, 2026 WL 1734266 (E.D.N.Y. June 16, 2026).
- Branski v. Brennan Seng, No. 25-CV-1695 (E.D. Wis. Aug. 19, 2026).
- Vernekar v. Miller, No. 4:26CV3105, 2026 WL 2689561 (D. Neb. Sept. 8, 2026); Cannabrava de Sousa v. Selby, No. 4:26CV3056 (D. Neb. Sept. 22, 2026); da Silva Trajano v. USCIS, No. 25-12388 (D. Mass. July 24, 2026); Nagaiah v. Allen, 784 F. Supp. 3d 798 (E.D. Pa. 2025); Agrawal v. Miller, 2025 WL 2879217 (D. Neb. Sept. 12, 2025).
- Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010); Amin v. Mayorkas, 24 F.4th 383 (5th Cir. 2022); Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024); Corner Post, Inc. v. Board of Governors, 603 U.S. 799 (2024).
- USCIS, Form I-290B, Notice of Appeal or Motion.
This article is for general information only and is not legal advice. Immigration law changes often and every case depends on its facts. Speak with a licensed immigration attorney about your situation. Court decisions and data described here are current as of November 6, 2026. Attorney Advertising.