District Court Rules USCIS Use of “Final Merits Determination” in EB1(a) Petitions

On January 28, 2026, the U.S. District Court for the District of Nebraska granted summary judgment against USCIS in an Administrative Procedure Act challenge to the agency’s denial of an EB-1A (extraordinary ability) petition. In Mukherji v. Miller, the court vacated USCIS’s denial of the I-140 petition and remanded the matter to the agency with instructions to approve the petition.

The beneficiary in the case, a journalist, had submitted evidence that the USCIS found sufficient to satisfy more than the required number of regulatory criteria under 8 C.F.R. § 204.5(h)(3). Despite that, the USCIS denied the petition at what it described as the “final merits determination” stage, concluding that the record did not show, in the totality of the circumstances, sustained national or international acclaim.

Court Focuses on Two-Step Framework

The Nebraska court treated the dispute as turning primarily on a legal question: whether the USCIS properly created and implemented a two-step adjudicatory framework for EB1(a) petitions, including a second-stage final merits determination, without engaging in notice-and-comment rulemaking required for substantive or legislative rules.

In the court’s view, the agency’s adoption and use of this final merits determination concept was unlawful under the APA. The court also faulted the USCIS for changing its approach to adjudicating these petitions without providing sufficient explanation or analysis of the sudden change in procedures.

Practical Impact: A Court-Ordered Approval After an EB1(a) Denial

The remedy in Mukherji is notable. Rather than merely sending the case back to the USCIS for another adjudication, the court vacated the denial and remanded with instructions to approve. For applicants, this underscores that, at least in some circumstances, litigation can do more than secure another review. It may lead to a direct and enforceable outcome.

At the same time, it is important to keep the decision’s formal reach in perspective. A single federal district court decision is not a nationwide precedent. The USCIS may continue to apply its current approach in other cases, and other courts may view the legal issues differently. Nonetheless, Mukherji provides a new judicial analysis that may be useful in challenging certain denials.

Who May Want to Evaluate Litigation After an EB1(a) Denial

Applicants often assume that once USCIS states they met the criteria but failed final merits, there is little that can be done. While every case is fact-specific, Mukherji highlights scenarios where litigation may be worth evaluating, including when the denial appears to rest on a shifting or unclear standard after USCIS acknowledges multiple criteria have been met; apply a “recency” or “continued awards” expectation as if the law requires uninterrupted, year-by-year recognition; and discount or disregard evidence without a clear explanation connecting the record to the agency’s conclusions.

Why APA Litigation Can Be Effective

Many immigration benefit denials, including some I-140 denials, may be challenged in federal court under the APA. In these cases, the court generally reviews the administrative record (the evidence that was before the agency) and evaluates whether the agency acted in an arbitrary and capricious manner, abused its discretion, or acted not in accordance with law.

Importantly, litigation is not simply another appeal. It is a separate process with different standards and a different decision maker. Where an agency’s reasoning is inconsistent, unsupported by the record, or based on an unlawful framework, an APA challenge can provide a meaningful remedy. Deadlines, venue considerations, and strategic choices, such as whether to refile, appeal administratively, or sue, can be highly time sensitive. The Mukherji decision is a reminder that applicants are not necessarily out of options after an EB1(a) denial, even when the USCIS claims the petitioner met multiple regulatory criteria but failed final merits.

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