For more than a decade, EB-1A extraordinary-ability petitioners have lived under a two-tier adjudication regime that exists nowhere in the Immigration and Nationality Act and nowhere in the regulations. A petitioner first had to satisfy at least three of the ten evidentiary criteria set out in 8 C.F.R. § 204.5(h)(3). Then, having done so, the petitioner had to survive a second, free-floating evaluation that USCIS called the “final merits determination” — an undefined judgment about whether the documentary record, taken as a whole, was sufficient to show extraordinary ability. The second step was where most denials lived. It had no fixed contours, no published standard, and no meaningful framework for review.
On January 28, 2026, the United States District Court for the District of Nebraska, in Mukherji v. Miller, vacated a denial built on that second step and instructed USCIS to approve the petition. The court relied on Loper Bright Enterprises v. Raimondo, decided by the Supreme Court in 2024, to conclude that the final merits determination is not entitled to deference and cannot stand. The decision is narrow on its face. Its implications for EB-1A practice are not.
Background: How the “Final Merits Determination” Was Built
The framework traces to the Ninth Circuit’s 2010 decision in Kazarian v. USCIS. Kazarian rejected a particular USCIS practice — the agency’s habit of refusing to credit evidence under a regulatory criterion unless the underlying achievement was itself shown to be “extraordinary.” That approach collapsed proof into the ultimate question and made the criteria functionally unwinnable. The court untangled the two: the criteria are a threshold; the ultimate finding of extraordinary ability is a separate inquiry.
USCIS read Kazarian as authority to build a formal two-step process and adopted it as nationwide policy in December 2020 through revisions to its Policy Manual. Step one: count the criteria. Step two: assess the totality. Adjudicators were instructed to ask, after a petitioner cleared step one, whether the evidence “in its totality” demonstrated the requisite high level of expertise — an inquiry the Policy Manual described but never reduced to articulable standards.
The result was predictable. Petitioners would satisfy four, five, or six of the ten criteria and receive a denial reciting that the evidence, viewed in its totality, did not establish sustained acclaim at the top of the field. The denial would rarely identify which specific deficiency drove the result. The second step became a discretionary safety valve that operated outside the regulations and outside the reach of meaningful review.
The Decision
The petitioner in Mukherji was an Indian national journalist who filed an I-140 in March 2024 seeking EB-1A classification. USCIS conceded that she satisfied five of the ten regulatory criteria — nearly double the regulatory minimum — but denied at the final merits stage, concluding that the totality of the record did not establish that she sat “at the very top” of her field on a sustained basis.
The district court vacated the denial and remanded with instructions to approve. Three holdings carry the decision.
First, the court rejected the final merits framework as a substantive rule adopted without the notice-and-comment process required by 5 U.S.C. § 553. USCIS had treated the framework as a binding adjudicative standard but had never subjected it to rulemaking. That alone was disqualifying.
Second, the court held the framework arbitrary and capricious under Encino Motorcars LLC v. Navarro. An agency that departs from a prior approach owes the public a reasoned explanation acknowledging the change. The 2020 Policy Manual revisions did not do so. USCIS did not concede it was raising the bar; it simply did, and then declined to define how high.
Third, and most consequential going forward, the court invoked Loper Bright to assert independent judgment on the legal question. Whether USCIS may impose a totality assessment beyond the regulatory criteria is a question of statutory and regulatory interpretation. Under Loper Bright, that question belongs to the court, not to the agency. The court concluded that neither INA § 203(b)(1)(A) nor the implementing regulations contemplate a second evaluative layer. The criteria are the criteria. Satisfying them establishes eligibility.
The shift is not that USCIS lost a single petition. It is that the legal architecture supporting the final merits determination — deference to the agency’s interpretation of its own framework — no longer exists. After Loper Bright, every reviewing court starts from a clean slate.
Why Loper Bright Changes the Math
Before June 2024, Chevron gave agencies meaningful latitude to construe ambiguous statutory terms. “Extraordinary ability” is the paradigmatic ambiguous term, and USCIS had used that ambiguity to defend a two-step framework that the statute did not require. The Fifth Circuit’s 2022 decision in Amin v. Mayorkas, which upheld the final merits determination as a permissible interpretive rule, rested squarely on that deference.
Loper Bright removed it. Reviewing courts must now decide for themselves whether an agency’s reading of a statute is the best reading — not merely a permissible one. Where USCIS once needed only to articulate a defensible construction, it now needs a construction the court would adopt independently. That is a significantly harder standard, and one the final merits determination cannot easily satisfy. The framework was built on agency assertion. It now requires a textual home, and it does not have one.
The Nebraska district court is one trial court. Its decision does not bind USCIS nationwide and does not bind any court of appeals. But it is the first post–Loper Bright opinion to take the question head-on, and the reasoning travels. Other district courts evaluating similar denials will read Mukherji, and many will reach the same place.
A Caveat on Pace
None of this happens quickly, and it is important to be clear about what does not change in the near term. USCIS will not stop applying the final merits determination. A single trial-court order in one district does not bind the agency nationwide. Adjudicators at the Nebraska, Texas, California, and Vermont service centers will continue to issue denials under the existing framework, working from the same Policy Manual and the same template language they used the day before Mukherji was decided. There is no indication that training has changed, that templates have been revised, or that the Policy Manual will be updated. Petitions filed this week should be prepared as if the framework is still fully in force, because for adjudication purposes it is.
The realistic timeline for any operational change is measured in years, not months. Other district courts will reach the same question and will not all reach the same answer. Circuit splits will develop. The Eighth Circuit may take Mukherji on review and either ratify it or pull it back. Other circuits will weigh in on similar challenges. Amin remains good law in the Fifth Circuit until either that court revisits it under Loper Bright or the Supreme Court resolves the split. A nationwide change in adjudication practice — whether through formal policy reversal, rulemaking, or appellate consensus — is plausible but not imminent.
The practical value of Mukherji in the interim is asymmetric. It does not stop denials from issuing. It changes what a petitioner can do about one once received, and it strengthens the posture on motions to reopen and at the federal-court threshold. Treat the decision as a meaningful shift in the litigation landscape, not as an immediate change in administrative practice.
What This Means for Petitioners and Petitions in Process
Pending Denials and Reopened Cases
A denial that rests primarily on a final merits determination — rather than on a failure to satisfy three regulatory criteria — is now a substantially stronger candidate for federal court review. The traditional cost-benefit calculation that favored refiling over litigation has shifted. Petitioners and counsel evaluating a recent denial should look closely at the denial’s reasoning. If the criteria were credited and the denial turned on a totality assessment, the litigation posture has materially improved.
Filing Strategy
The decision should not encourage petitioners to file thinner records. USCIS will not abandon the final merits framework absent a binding appellate decision or a policy reversal, and the criteria themselves remain the gating evaluation. Petitions that cleanly establish four, five, or more criteria with high-quality documentary support remain the strongest filings. What has changed is the meaning of a denial after that quality of record — not the standard for building it.
Government Response
USCIS has options. The agency can attempt notice-and-comment rulemaking to codify a totality assessment with articulable standards — a meaningful undertaking that would invite further litigation on the substantive merits of the rule. It can press the issue to the Eighth Circuit and seek to confine Mukherji. It can adjust adjudication practice quietly and continue to deny on criteria-based grounds rather than totality grounds. The likely response is some combination of the second and third, with rulemaking unlikely in the near term.
A Broader Pattern
Mukherji is part of a broader recalibration in administrative law that is touching every corner of immigration adjudication. Loper Bright did not invalidate any specific agency practice. What it did was return the interpretive question to courts, and that change is now working through individual cases. The EB-1A final merits determination is one of the first sustained agency practices to fall. It will not be the last.
For founders, executives, and researchers considering an EB-1A filing, the takeaway is narrower than the headlines suggest. The substantive standard — extraordinary ability evidenced through the regulatory criteria — has not changed. USCIS adjudication has not changed either, and is unlikely to in the short term. What has changed is the post-denial landscape. A well-documented petition that nonetheless receives a final-merits denial is no longer the dead end it once appeared to be, and the cost-benefit calculation for federal court review is meaningfully different than it was a year ago.
This article is for informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship. Laws and regulations change; readers should not rely on this content as a substitute for qualified legal counsel specific to their circumstances. Attorney Advertising.