EB-1A Final Merits Denial After Mukherji v. Miller: AAO in 2026

USCIS approved 1,348 EB-1A petitions in April through June 2026 and denied 2,832. That is a 32.2% approval rate, down from 74.7% in the first quarter of FY2025, per USCIS's Form I-140 data for FY2026 Q3. Our FY2026 Q3 data breakdown covers the quarter in full. This piece is about the denials that land after the criteria are already conceded, and about what changed in 2026 for attorneys who want to fight them.

If you need the doctrine from the start (what Step 2 asks, how Kazarian framed it), read our Kazarian Step 2 guide and the earlier explainer on why meeting the criteria is not enough. Neither is repeated here.

The 2026 Denial Pattern: Criteria Conceded, Then Step 2

One pattern keeps recurring in 2026 AAO decisions. The officer counts three, four, sometimes six criteria as met, then denies in the final merits determination. The August 27 decision discussed below opens that way: USCIS "concluded that the Beneficiary met three criteria" and denied anyway. The August 26 decision does too.

1Step 1 · Criteria count

Does the evidence meet at least 3 of the 10 regulatory criteria (or a one-time major award)?

Plain reading of each criterion. No weighing of overall merit.

Denied for failing to meet 3 criteria

2Step 2 · Final merits

Viewed as a whole, does the record show sustained national or international acclaim and a place in the small percentage at the very top of the field?

Totality of the evidence, quality over quantity.

Denied at final merits even with 3 or more criteria met

The diagram shows where each step denies. What it cannot show is how much weight the second box now carries. On Reddit's r/eb_1a, one petitioner reported on October 4, 2026 that USCIS accepted all six claimed criteria and still denied at final merits after an RFE (authorship, judging, press, original contributions, critical role, high salary; Texas Service Center). That is one anecdote, unverified, and it should be read as such. The poster described a one-page RFE whose final merits point was that the petitioner had achieved national acclaim but was not maintaining it. Sustained acclaim, again.

The second step is the one Mukherji attacked. So it matters exactly what that case decided, and what it did not.

Mukherji Held One Thing, and USCIS Let It Stand

Mukherji v. Miller, No. 4:24-cv-03170, was filed in the District of Nebraska on September 17, 2024 by journalist Anahita Mukherji, whose EB-1A petition USCIS had denied at Step 2 after conceding five criteria. The case was decided on cross-motions for summary judgment, and the progression order states that "review of this case will be limited to the Administrative Record." Remember that sentence. It comes back later.

On January 28, 2026, Senior Judge Joseph F. Bataillon granted the petitioner's motion. The docket entry for the memorandum and order reads: "The Secretary's decision is set aside. The Court vacates the Agency's denial and remands the petition to the Agency with instructions to approve the petition."

The legal basis, as summarized by Cyrus D. Mehta & Partners, was that USCIS adopted the final merits determination without notice-and-comment rulemaking under the Administrative Procedure Act. The court treated the validity of that step as "clearly a question of law, not fact," which after Loper Bright Enterprises v. Raimondo (2024) means no deference to the agency's reading. The court also rejected USCIS's demand that a petitioner keep collecting recent awards to prove acclaim was sustained.

Then the appeal. The government noticed it on March 27, 2026. The Eighth Circuit docketed it as No. 26-1578 on March 30, extended the government's brief deadline to June 10, and on June 10 granted the government's own motion to dismiss under FRAP 42(b). No brief was filed. No opinion issued.

Read that sequence plainly. USCIS gave up a circuit ruling that would have bound every federal court in the Eighth Circuit, in either direction. As of Sedaghat Law's September 11 review, "USCIS has not rescinded the framework, has not amended the Policy Manual to remove it." The Policy Manual's EB-1A chapter still describes the two-step analysis.

The dismissal is still worth something. With no Eighth Circuit opinion on the books, the Mukherji reasoning stays available to any district judge who finds it convincing, and the government has not tested it on appeal. That is the whole of its value outside the case.

The AAO Acknowledged Mukherji in August and Applied Step 2 Anyway

Two non-precedent decisions from the last week of August show the AAO's current approach in full.

AUG272026_03B2203 (August 27, 2026). A classical composer born in 2001, petition filed December 2025. USCIS conceded awards, judging and artistic display. On appeal the petitioner argued the final merits determination was "unlawful, arbitrary, and capricious, and requires reversal under Mukherji v. Miller." The AAO's answer: the decision "issued by a district court in Nebraska is not a binding precedential authority in the present case which arises out of New York," citing Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). It then wrote, "we decline to address the substantive issues in Mukherji until it is properly before us."

The rest of the decision is a drafting lesson. The AAO cited Nakos v. USCIS (N.D. Tex. July 15, 2026) and Trajano v. USCIS (D. Mass. July 24, 2026) for the point that comparison to others in the field is a proper demand, and that a petitioner must "situate" awards "in context." It concluded the petitioner "has not sufficiently contextualized or compared the Beneficiary's accomplishments and career to other renowned composers." It even used the recommenders' own vocabulary against the case: professors described performances as a "debut" or "premiere," which the AAO read as "indicating that the Beneficiary is at the beginning juncture of his career." The closing line appears word for word in both August decisions: EB-1A is "intended for individuals already at the top of their respective fields, rather than those progressing toward the top."

AUG262026_02B2203 (August 26, 2026). A credit risk analyst and doctoral student in Florida. Criteria conceded: published material, judging, scholarly articles. Same Mukherji answer, this time "not a binding precedential authority for the Petitioner who is in Florida." Four details matter more for practice:

• USCIS had stated both that the petitioner did and did not meet three criteria. The AAO called the contradiction "harmless error" because the officer still ran a full final merits analysis.
• The peer review ran from July to September 2025. The IMC Fellow grade was conferred October 10, 2025. Both happened in the months before a December 2025 filing, and the AAO said three months of fellowship "does not sufficiently demonstrate" sustained acclaim.
• Salary was compared to Glassdoor and Salary.com averages for Florida risk analysts. The AAO wanted a comparison to "other renowned financial risk analysts or economists who are at the very top of the field."
• Letters from employers and colleagues "use regulatory language such as 'original contribution' or 'critical role' without providing persuasive details," and failed to show the petitioner is viewed "by the overall field, rather than by a solicited few."

We pulled every EB-1A decision the AAO posted for January through August 2026 from the AAO non-precedent decisions database: 370 decisions. Forty-three mention Mukherji, the first on April 16, 2026. Thirty-five of those were appeals dismissed and six were motions dismissed. The two remands (AUG252026_03B2203 and JUL272026_03B2203) turned on other errors, and both still rejected the Mukherji argument. A June 25 decision, JUN252026_03B2203, states the AAO's position directly: the two-step process "is an interpretive rule that does not violate the Administrative Procedure Act, nor is it a legislative rule."

So the AAO will not be the forum that adopts Mukherji. For more on how the office has handled Step 2 historically, see our AAO EB-1A decisions review.

Wrong-Standard Denials Still Get Reversed

The AAO rejects attacks on Step 2 itself. It does not defend every Step 2 denial. The 2026 remands show two kinds of officer error that still win.

The first is applying another classification's test. In JAN202026_03B2203 (January 20, 2026), a physicist's original-contributions evidence was rejected because it did not show he was "well positioned to advance his proposed endeavor." That is the second prong of Matter of Dhanasar, the national interest waiver test. The AAO said SCOPS "misapplies the use of national interest waiver criteria" to an extraordinary ability petition, withdrew the decision and remanded. If a denial uses "proposed endeavor," "well positioned," or "on balance, beneficial to waive" in an EB-1A context, quote it back in the appeal brief. Those phrases are the error.

The mistake runs both ways. In JAN232026_01B2203, an appeal the AAO went on to dismiss, the decision notes that "much of the language in the initial filing was oriented towards the standards of a different immigrant classification." Firms that recycle NIW petition templates into EB-1A filings hand the officer the same confusion from the other side.

The second winning argument is an unexplained finding. In JUL272026_03B2203 (July 27, 2026), USCIS acknowledged a competitive swimmer was "among the top 0.001% of competitive swimmers in the United States" and still found his acclaim not sustained. The AAO remanded. USCIS had not discussed his awards, memberships, press or leading role in the final merits analysis, and had not explained why a five-year career with rising results fell short. The AAO quoted the Policy Manual: "the term sustained does not imply an age limit." It also cited 8 CFR 103.3(a)(1)(i), under which an officer must explain the reasons for a denial.

Put the swimmer next to the composer. Both were young. One record showed a rising trajectory across five years of national competition. The other showed student prizes and a debut. What separated them was the shape of the evidence.

Severity here reflects how hard the pattern is to cure once the petition is filed. P7 and P8 rate low because they are officer errors the AAO corrects on appeal, so they are the grounds to lead with.

Draft Step 2 for a Reader Who Only Has the Record

The Mukherji progression order is the drafting rule for 2026: a federal court reviewing an EB-1A denial looks at the administrative record. And under PA-2026-05, the August 5, 2026 USCIS policy alert on evidence, RFEs and NOIDs, officers may now deny without an RFE at all. The initial filing may be the only record you get to make.

That changes how the Step 2 section should be built. Write it for three readers at once (the officer, the AAO, and a district judge with no immigration background) who will each check whether the conclusion follows from the exhibits.

A structure that holds up:

1. Field and comparator set first. Define the field at the level the evidence supports, then name the people or benchmarks who represent "the very top" of it, with sources. The composer lost because nobody told the AAO who the renowned composers were.
2. Position in that set. Citations against field percentiles, salary against the top national earners, selection rates for the awards. Numbers with denominators.
3. A dated timeline. One table, year by year, showing recognition across the whole career. "Sustained" is a timeline question, and the swimmer won on trajectory.
4. Exhibit map. Every Step 2 sentence cites an exhibit number. Any claim without an exhibit gets cut before filing, because a judge reviewing the record will notice.
5. Independent voices. Letters from people with no employment or co-author tie, each stating a fact about adoption or reception in the field.
6. Address the weak spots. If the strongest evidence is recent, say why and show what preceded it. Officers find the gap anyway.

Pick the Forum Before the 30-Day Clock Runs

A final merits denial opens four doors. They are not equally useful, and two of them close quickly.

Forum	What it can do	Typical deadline	Does Mukherji help?
AAO appeal (Form I-290B)	De novo review of the whole record; can sustain, dismiss, or remand. The office that denied may first grant favorable action within 45 days (8 CFR 103.3(a)(2)(iii))	30 days after service, 33 if mailed	No. The AAO declines to follow it outside Nebraska. Preserve it only
Motion to reopen or reconsider (I-290B)	Same office revisits its decision; reopening needs new facts, reconsideration needs a legal error in the record as it stood	30 days (8 CFR 103.5(a)(1)(i))	No. Six 2026 motions citing it were dismissed
Refile a new I-140	Fresh adjudication on a rebuilt record that answers the denial point by point	None	Not relevant; the fix is evidence
District court (APA)	Sets aside a denial that is arbitrary, unexplained or contrary to law; in Mukherji, ordered approval	Generally six years (28 U.S.C. 2401(a))	Persuasive only, and other judges, including in Nebraska, have upheld Step 2

Two points the table compresses. First, an AAO appeal is optional for APA purposes. Under 5 U.S.C. 704, an otherwise final agency action is reviewable without an appeal to a superior agency authority unless a rule both requires the appeal and makes the decision inoperative meanwhile. Going to the AAO first gives USCIS a second chance to write a better-reasoned denial. Some litigators prefer to sue on the original decision for exactly that reason. Others want the AAO's de novo look, which remanded the swimmer's case. Both are defensible; choose before the 30 days run out.

Second, venue. Under 28 U.S.C. 1391(e), a suit against a federal officer may be brought where a defendant resides, where a substantial part of the events occurred, or where the plaintiff resides if no real property is involved. A petitioner living in Nebraska can file where Mukherji was decided. Everyone else has to assess how their own circuit and district have treated Step 2. The AAO's August 27 decision cites district courts in Texas, Massachusetts, Pennsylvania and the District of Columbia that upheld EB-1A denials. It also quotes the Fifth Circuit in Amin v. Mayorkas (2022), which found the two-step analysis "consistent with the governing statute and regulation." An APA claim in the Fifth Circuit that rests only on Mukherji is a hard case to bring.

When is the Mukherji claim worth raising in court? When USCIS conceded the criteria in writing, the Step 2 rationale is thin or internally inconsistent, and the record already contains comparative evidence. In that posture, the procedural claim sits beside an ordinary arbitrary-and-capricious claim, and a judge who will not go as far as Mukherji may still vacate an unexplained denial. Without that record, the APA claim alone asks a court to break with most of the reported case law.

EB-1A Merits Are Reviewable in Court; NIW Mostly Is Not

The contrast matters most for clients with both petitions pending.

EB-1A denials reach the merits in federal court. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), is itself a merits review of an AAO decision. Every district court case the AAO cited in August (Nakos, Trajano, Hamal, Bhanu) reviewed an EB-1A denial on the merits. The petitioner usually lost, but a judge read the record.

The NIW is different in the Ninth Circuit and elsewhere. Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019), held that the national interest waiver decision is committed to agency discretion, so 8 U.S.C. 1252(a)(2)(B)(ii) bars review. On September 14, 2026, a published Ninth Circuit opinion, Barman v. USA, No. 24-464, restated that holding. Barman is a CNMI long-term resident (NM-1) case, not an NIW case. But it relies on Poursina's statement that section 1252(a)(2)(B)(ii) "strips federal courts of jurisdiction to review USCIS's decision to deny a national-interest waiver," and it lists the Eleventh Circuit's similar 2022 NIW ruling in Brasil. Barman did nothing to loosen it.

For a client with both petitions pending, the practical reading:

• An EB-1A denial has a judicial path; an NIW denial in the Ninth or Eleventh Circuit largely does not.
• The EB-1A record should be built as a litigation record from day one, since it may end up in front of a judge.
• The NIW should still be filed if the client qualifies, because its approval rate (55.3% in FY2026 Q3 per the same USCIS file) now exceeds EB-1A's. Our NIW vs. EB-1A comparison walks through the choice.

What to Do With a Final Merits Denial This Month

Start with the denial notice and a calendar, then work through these in order:

1. Calendar the I-290B deadline from the notice date (30 or 33 days) and note whether you will file on paper or online.
2. Read the Step 2 rationale for wrong-standard language and for findings the officer never explained. Those are your appeal grounds.
3. Decide AAO versus district court before day 30, since going to the AAO first lets USCIS improve its reasoning.
4. If refiling, rebuild the comparator set and timeline before anything else. More criteria will not fix a Step 2 denial; the August decisions declined even to reach the extra ones.
5. Put a one-paragraph Mukherji preservation argument in whatever you file.

The AAO's position has not moved since April. It reads Mukherji, cites Matter of K-S-, and turns to the evidence. The petitions that survive in this climate give it evidence it can compare.

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