Significant Shift in Extraordinary Ability Adjudications 

A recent decision from the U.S. District Court for the District of Nebraska marks an important development in the adjudication of EB-1A extraordinary ability immigrant visa petitions. In Mukherji v. Miller, the court rejected USCIS’s long-standing use of a two-step adjudication process and ordered the agency to approve an EB-1A petition that had been denied under USCIS’s so-called “Final Merits” determination. 

The case arose from the denial of an EB-1A petition in which USCIS acknowledged that the petitioner satisfied the required three regulatory eligibility criteria. The agency denied the petition at the “Final Merits” stage of its analysis, concluding that the petitioner had not demonstrated sufficiently recent or continuous “sustained national or international acclaim.” 

The court found this approach unlawful. 

A Rejection of Extra-Regulatory Standards 

• At the core of the decision is the court’s conclusion that USCIS never lawfully adopted the “Final Merits” determination requirement. While USCIS has applied this two-step framework for more than a decade, the court held that the second step was never implemented through notice-and-comment rulemaking as required by the Administrative Procedure Act. 

Extraordinary Ability Does Not Require Sustained Achievement 

• The court also rejected USCIS’s contention that extraordinary ability must be continually reaffirmed through recent awards or media attention, stating that neither the statute nor the regulations require applicants to remain continually at the top of their field. 

What This Means for Employers and Applicants 

• Although the immediate impact of the decision may be limited to EB-1A petitions adjudicated by the Nebraska Service Center, it provides a clear roadmap for challenging all EB-1A denials by USCIS based solely on “Final Merits” determinations. EB-1A petitions in which the USCIS alleged the beneficiary failed to demonstrate sustained achievement are also vulnerable. 

• It is worth noting that USCIS is expected to propose regulations later in 2026 that will “update and modernize” provisions governing EB-1A petitions and “clarify” evidentiary requirements for all first preference petitions. While the timeline of the proposed rule is uncertain, it is likely that the proposal will attempt to address the court’s decision and codify the “Final Merits” determination requirement. 

How Meltzer Hellrung Can Help 

Meltzer Hellrung regularly represents foreign nationals seeking EB-1A immigrant visas. We not only assist clients in structuring approvable EB-1A petitions, but also assist previously unsuccessful EB-1A applicants in developing more effective filing strategies. If you believe that you may benefit from the court’s rejection of the “Final Merits” requirement, please contact our office for additional information. 

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