Getting an EB-1A Green Card is often described as the “pinnacle” of U.S. immigration. Unlike traditional paths, the EB-1A allows individuals with extraordinary ability to bypass the lengthy labor certification (PERM) process. However, that speed comes with the highest standard of scrutiny.
Meeting the technical requirement of three out of ten criteria is only the first step. The real “final boss” is the Final Merits Determination.
The Two-Step Analysis
USCIS follows a two-step process when evaluating an EB-1A petition:
- Step One (Regulatory Review): The officer checks if you have submitted evidence for at least three of the ten regulatory criteria (such as high salary compared to similarly situated professionals in your field, judging the work of others, critical role in a distinguished organization, or memberships in prestigious organizations).
- Step Two (The Final Merits Determination): The officer considers the petition in its entirety to decide if you have achieved and sustained national or international acclaim and are part of that small group at the very top of the field.
Importantly, satisfying three criteria does not automatically result in approval. The second step is a qualitative, holistic assessment.
What Are Some Factors ThatTip the Scales in the Favor of Petitioners in the Final Merits Determination?
Even with the new legal landscape, USCIS officers still look for “qualitative” markers in their holistic review of EB-1A petitions. Here are the “heavy hitters” for a successful review:
1. High Citation Rates & H-Index
If your work is cited at a high rate relative to your peers, it proves your work is foundational. A high h-index is one of the most persuasive pieces of objective data in Step Two.
2. Affiliation with Leading Institutions
Experience at highly ranked research institutions or globally recognized organizations can strengthen the overall narrative of excellence—particularly when combined with independent evidence of impact.
Institutional affiliation alone is not determinative. However, when the petitioner plays a critical role within a distinguished institution, that context can reinforce claims of high standing.
3. Unsolicited Invitations
Were you asked to speak because you applied, or because your expertise was required? Unsolicited invitations to present or moderate at recognized conferences are clear indicators of high standing.
4. Competitive Government Funding
In STEM, being a principal investigator on a peer-reviewed and competitively-funded government grant (like those from the NIH or NSF) is a “gold star” for your analysis.Alternatively, government funding from foreign government science or academic facing entities with a renowned global reputation will also carry significant weight.
5. Innovation that Impacts Your Field
Adjudicators evaluate whether the petitioner’s claimed original contributions are not only unique, but demonstrably significant to the field as shown by objective evidence of impact, widespread recognition, or meaningful influence beyond the petitioner’s immediate employer or collaborators.
Recent Developments in Litigation
In January 2026, a federal district court in Nebraska issued an important decision in Mukherji v. Miller addressing how USCIS applies the Final Merits Determination.
In that case, USCIS acknowledged that the petitioner met five regulatory criteria but denied the petition at the final merits stage, concluding her acclaim was not “sustained” because most major recognition occurred several years earlier.
The court disagreed.
First, it held that USCIS improperly adopted the two-step “final merits” framework without formal rulemaking under the Administrative Procedure Act.
Second, it found the denial arbitrary and capricious. The court emphasized:
- No automatic recency rule. The statute does not require constant, year-by-year awards to maintain extraordinary ability.
- Clear explanations are required. USCIS must provide specific, evidence-based reasons for denial—not vague conclusions.
- The standard is “more likely than not.” Petitioners are not required to meet a heightened or undefined burden.
In a rare outcome, the court vacated the denial and ordered approval of the petition.
While the broader impact may evolve, Mukherji reinforces an important principle: the Final Merits Determination must be grounded in law, evidence, and clearly articulated reasoning—not subjective impressions.
Final Thoughts: The Narrative of Excellence
The EB-1A is a story of a career that has risen to the top of a field. Success in the Final Merits Determination now depends on two things: providing the context of your excellence and knowing your legal rights to challenge a subjective “vibe check” by the agency.
The strongest petitions do not simply list accomplishments. They demonstrate influence, recognition, and comparative distinction—supported by objective evidence and a coherent narrative.
If you have the achievements, the strategy lies in presenting them in a way that withstands both holistic scrutiny and legal review.
If you have the achievements, we have the expertise to help you weave them into a narrative—and a legal argument—that stands up to the highest level of scrutiny.
Considering Pursuing an EB-1A?
If you are exploring whether your background may qualify for EB-1A classification, it is important to look beyond the three-criteria checklist and assess how your accomplishments would be viewed under a holistic final merits review.
Each case turns on context—how your achievements compare within your field, how your impact is documented, and how clearly your record demonstrates sustained acclaim.
If you would like a thoughtful evaluation of your profile and guidance on next steps, we invite you to schedule a consultation to discuss your goals and options. Please fill out our form, email info@eoimmigration.com, or call us, at (305) 391-2105.
