In January 2026, a federal court issued a decision that could significantly reshape how extraordinary ability immigrant petitions are adjudicated in the United States. The case, Mukherji v. Miller, challenges a long-standing practice used by U.S. Citizenship and Immigration Services (USCIS) to deny EB-1A petitions even after applicants demonstrate that they meet the regulatory criteria.
For immigration practitioners and highly accomplished professionals seeking permanent residence, this ruling may mark an important shift in the interpretation of the EB-1A category.
The Traditional EB-1A Framework
The EB-1A immigrant visa category allows individuals who possess “extraordinary ability” in fields such as science, arts, business, athletics, or education to obtain permanent residence without a job offer or labor certification.
Under the governing regulation (8 C.F.R. § 204.5(h)), applicants must either show a major internationally recognized award or demonstrate that they satisfy at least three out of ten regulatory criteria.
Since 2010, USCIS has applied a two-step adjudicative framework, derived from the Ninth Circuit’s decision in Kazarian v. USCIS. Under this approach:
First, the agency determines whether the petitioner satisfies at least three of the regulatory criteria.
Second, USCIS conducts a “final merits determination” to evaluate whether the total evidence demonstrates that the applicant truly possesses extraordinary ability.
While this framework has been widely applied for more than a decade, critics have long argued that the second step allows adjudicators to impose additional requirements not found in the statute or regulations.
The Mukherji Decision
In Mukherji v. Miller, a federal district court in Nebraska reviewed a case where USCIS acknowledged that the petitioner satisfied five of the EB-1A regulatory criteria yet still denied the petition during the final merits stage. (Fennemore)
The court concluded that USCIS’s use of the “final merits determination” was unlawful because it effectively created a substantive rule that had never gone through the rulemaking process required by the Administrative Procedure Act. (ellis.com)
As a result, the court vacated the denial and ordered USCIS to approve the petition. (wildeslaw.com)
This is a striking outcome. Courts typically remand immigration petitions back to the agency for reconsideration rather than directing approval.
Why the Ruling Matters
The decision raises important questions about how USCIS may evaluate EB-1A petitions going forward.
For years, the final merits stage has been one of the most common reasons for denial. Petitioners frequently satisfy three or more regulatory criteria only to receive a denial based on a subjective evaluation of whether their achievements are sufficiently “extraordinary.”
If other courts adopt the reasoning in Mukherji, it could have several implications.
First, USCIS may face limitations on its ability to deny cases after acknowledging that the regulatory criteria are satisfied.
Second, previously denied EB-1A cases may become candidates for litigation or reopening.
Third, the decision could prompt USCIS to reconsider its adjudication guidance or initiate formal rulemaking if it wishes to maintain a similar evaluative framework.
Practical Implications for EB-1A Applicants
Despite the significance of the ruling, applicants should remain cautious.
At present, Mukherji is a district court decision and does not automatically invalidate the two-step framework nationwide. USCIS officers may continue applying the final merits analysis until further judicial or administrative guidance emerges.
However, the decision strengthens arguments that USCIS cannot impose extra-regulatory standards beyond those explicitly required by law.
For practitioners, this creates an additional litigation strategy when strong EB-1A cases are denied despite satisfying multiple regulatory criteria.
The Broader Trend in Immigration Litigation
The case also reflects a broader pattern in immigration law: federal courts increasingly scrutinize agency adjudications under the Administrative Procedure Act.
Courts have shown greater willingness to intervene where agencies rely on unwritten policies, inconsistent standards, or subjective interpretations that go beyond the statutory framework.
In the employment-based immigration context, this trend could gradually reshape how petitions such as EB-1A and EB-2 National Interest Waiver cases are adjudicated.
Conclusion
The Mukherji decision represents one of the most consequential judicial challenges to the EB-1A adjudication framework in recent years. While it remains uncertain how broadly the ruling will influence USCIS practice, it provides a powerful reminder that immigration agencies must operate within the bounds of the law and cannot create new requirements through internal policy alone.
For extraordinary ability applicants and their counsel, the decision underscores the importance of carefully documenting regulatory criteria and remaining prepared to challenge agency decisions when adjudications stray beyond the governing legal framework.
Asif Arif
