USCIS has withdrawn its appeal in Mukherji v. Miller, the case in which a federal court struck down USCIS’s use of the “final merits determination” framework in that case, concluding that the framework itself had not been lawfully adopted under the Administrative Procedure Act. The withdrawal leaves the district court ruling in place. It is one of the most closely watched immigration decisions of the year, and it matters whether you are simply following the news or actively preparing an extraordinary ability petition.
Here is the background, the ruling, and what the appeal withdrawal does and does not change.
A quick primer on the EB-1A
EB-1A is the “extraordinary ability” green card. Congress created it in the Immigration Act of 1990 for a small group of people at the very top of their field in the sciences, arts, education, business, or athletics. The statute asks for “sustained national or international acclaim” backed by extensive documentation.
There are two ways to qualify. The first is a single major, internationally recognized award, like a Nobel Prize or an Olympic gold medal. Most people do not have that. So the regulations, at 8 C.F.R. § 204.5(h)(3), provide a second path. You submit evidence that meets at least three of ten listed criteria. Those criteria include awards, published material about you, judging the work of others, original contributions of major significance, authorship of scholarly articles, and a leading or critical role for a distinguished organization.
Meeting three criteria sounds clear. In practice, it has not been. Since 2010, USCIS has added a second step. Even after an applicant clearly met three or more criteria, an officer would then make a separate “final merits determination.” At that stage the officer decides whether, looking at everything together, the person really is among the very top of the field. Many strong petitions have been denied at this second step, often with vague reasoning. That second step is exactly what the court examined in Mukherji.
The case
The petitioner, Anahita Mukherji, is an accomplished journalist and an Indian national. She filed her I-140 petition in March 2024.
USCIS agreed that she met five of the ten regulatory criteria. Only three are required. The agency still denied the petition at the final merits step. The core reason was timing. USCIS said the record did not show sustained acclaim after 2015 and questioned whether her recent work kept her at the top of her field.
Ms. Mukherji challenged the denial in federal court under the Administrative Procedure Act, the law that governs how agencies make and apply rules.
What the court held
On January 28, 2026, Senior U.S. District Judge Joseph F. Bataillon of the District of Nebraska ruled for the petitioner. The court vacated the denial and remanded the case with instructions to approve the petition. That is notable on its own. Courts usually send a case back for another look. Here the court ordered approval outright, finding nothing left for the agency to decide.
The decision rests on two independent grounds.
First, the court found the two-step framework was never lawfully adopted. The agency built the mandatory final merits step through internal policy memos in 2010, after the Ninth Circuit’s decision in Kazarian v. USCIS. Although Kazarian itself required USCIS to first determine whether the regulatory criteria were satisfied before considering the evidence as a whole, USCIS subsequently implemented the now-familiar “final merits determination” through internal policy guidance rather than formal regulation. It did not use the formal notice-and-comment rulemaking that the APA requires for this kind of substantive change. The court noted that the agency itself once treated this change as substantive in a 1995 rulemaking that was never finalized. In the court’s words, “the two-tier analysis was not valid at its inception.”
Second, the court found the denial arbitrary and capricious on its own terms. The officer never identified a clear, objective standard for why Ms. Mukherji fell short. The court also rejected the idea that an applicant must keep collecting awards year after year to stay qualified. Nothing in the statute requires a person to remain indefinitely at the very top of the field. The law looks at sustained acclaim, not an unbroken streak of recent headlines.
What the appeal withdrawal changes
USCIS initially appealed the decision to the Eighth Circuit Court of Appeals. It has now withdrawn that appeal.
This matters, but it is important to be precise about why.
A single district court decision is not binding nationwide. The only path to binding circuit precedent ran through the Eighth Circuit. By dropping the appeal, USCIS avoided a ruling that could have either reversed the decision or, if affirmed, locked in an adverse precedent across the circuit. The district court ruling now stands. Ms. Mukherji’s petition is approved.
For everyone else, the decision remains persuasive authority rather than binding law. It is the most significant judicial challenge to the final merits framework in over a decade, and the agency chose not to defend it on appeal. Practitioners can cite it as persuasive authority in responses to Requests for Evidence, in Notices of Intent to Deny, in administrative appeals, and in federal court.
What the withdrawal does not do is change agency policy. The two-step process still appears in the USCIS Policy Manual at Volume 6, Part F, Chapter 2. Officers are still applying it to petitions filed today. Until USCIS revises that guidance or goes through formal rulemaking, the final merits step remains part of normal adjudication.
What this means if you are preparing an EB-1A
The practical takeaways are steady, not dramatic.
Build your petition to win both steps. Meet your criteria cleanly, and also tell a clear story about why your work matters and how your recognition has held up over time. Depth tends to beat volume. Simply satisfying more criteria does not necessarily produce a stronger petition. Well-supported evidence addressing the regulatory criteria and explaining the significance of the beneficiary’s accomplishments is generally more persuasive than numerous minimally documented submissions.
If your recognition peaked a few years ago, document continuity. Show ongoing influence, citations, leadership, and reliance by others. Mukherji gives you a strong basis to push back when an officer treats a gap in recent awards as disqualifying.
If you received a final merits denial that met the criteria but failed at step two with vague reasoning, this ruling may strengthen the case for a federal court challenge.
We follow these developments closely and can help you assess where your case stands. If you would like a careful read of your record, we are glad to talk. Contact us at info@eoimmigration.com or call (305) 391-2105 to schedule a consultation.
