EB1A Final Merits Denial: Why 5 Criteria Isn't Enough (And How to Fix It)

The most frustrating denial in extraordinary ability practice is not the one where the evidence is weak. It is the one where USCIS concedes the petitioner satisfied five, six, or even seven of ten regulatory criteria — and then denies the case anyway.

This happens because the Kazarian two-step framework creates two separate gatekeeping moments. Meeting criteria is Step 1. Convincing the officer that the totality of that evidence establishes genuine extraordinary ability is Step 2. And Step 2 — the "final merits determination" — is where most of the hard denials now occur.

In January 2026, a federal court in Nebraska ruled that USCIS's final merits framework was unlawfully adopted in the first place. That ruling changes the strategic options for attorneys — both for petitions being filed now and for cases already denied.

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Why Meeting Three (or Five) Criteria Is Not Enough

The statutory standard for EB-1A under INA §203(b)(1)(A) is straightforward: the alien must demonstrate "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim."

The regulatory criteria at 8 CFR 204.5(h)(3) enumerate ten types of evidence that can establish extraordinary ability. Meeting at least three is the threshold.

The confusion arises from what USCIS does with a petition that clears that threshold.

In Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), the Ninth Circuit held that adjudicators should not impose extra requirements when evaluating individual criteria — criteria are met or not met on their own terms. The court also recognized that meeting criteria does not end the inquiry; a qualitative totality assessment was appropriate.

USCIS took that recognition further. In a December 2010 policy memo, the agency formalized a mandatory two-step framework:

• Step 1: Did the petitioner submit evidence meeting at least three criteria?
• Step 2 (Final Merits Determination): Does the totality of evidence establish sustained national or international acclaim, and that the petitioner is among the small percentage at the very top of their field?

Step 1 is binary. Step 2 is qualitative — and entirely within the officer's discretion, with no defined standard, no scoring rubric, and no rule that satisfying five criteria weighs more than satisfying three.

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The Mukherji Ruling: What the Court Actually Decided

On January 28, 2026, Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska issued a ruling in Mukherji v. Miller, Docket No. 4:24-CV-3170, that cut directly against USCIS's final merits framework.

The petitioner — journalist Anahita Mukherji — had satisfied five of the ten EB-1A criteria. USCIS conceded the criteria count but denied the petition at Step 2, concluding the totality of evidence did not establish extraordinary ability. The district court disagreed.

The court's holding rested on three independent grounds under the Administrative Procedure Act:

1. Excess of statutory authority (5 U.S.C. § 706(2)(C)) The court applied Loper Bright Enterprises v. Raimondo (2024) — the Supreme Court case that eliminated Chevron deference — and held that the final merits determination was a legal question for courts, not an agency discretion matter. Post-Loper Bright, courts "will determine all questions of law." USCIS's imposition of a mandatory Step 2 beyond the regulatory criteria exceeded its statutory authority.

2. Procedural violation (5 U.S.C. § 706(2)(D)) The two-step framework was established through internal policy memos — not through the notice-and-comment rulemaking required for legislative rules under the APA. The court held the framework "was not valid at its inception" because it was never properly promulgated.

3. Arbitrary and capricious (5 U.S.C. § 706(2)(A)) The court found USCIS's specific basis for denial — that Mukherji had not received recent acclaim — had no grounding in the statutory or regulatory text. The court wrote: "the Agency based its decision on whether she continuously received awards... The Court finds nothing in the statutory scheme that would support such a finding."

Rather than remanding to USCIS for re-adjudication, Judge Bataillon ordered direct approval of the petition — a remedy courts reserve for cases where the agency has had adequate opportunity to address the issue.

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Five Patterns of Step 2 Denial

Understanding how final merits denials are structured helps attorneys anticipate and preempt them at filing. These patterns recur across AAO decisions and reported attorney cases.

Pattern 1 — the absent totality argument — accounts for the largest share of preventable Step 2 denials. A petition that walks through each of five criteria and then concludes "therefore, extraordinary ability is established" has not made a Step 2 argument. It has assumed the Step 2 conclusion from Step 1 evidence. USCIS officers are trained to look for a standalone totality narrative, and its absence is taken as a failure to carry the burden.

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Building the Final Merits Narrative

The Step 2 final merits section is the most important part of the petition letter that most petitions omit or underwrite. It must stand alone as a coherent argument. It cannot simply summarize the criteria sections.

A defensible final merits section has four components:

1. Field definition at the appropriate level of specificity

The field must be defined broadly enough to allow a meaningful comparative population, but narrowly enough to accurately describe what the petitioner does. "Computer science" is too broad for a machine learning researcher specializing in protein structure prediction. "Protein structure prediction using transformer architectures" may be too narrow. "Computational biology and machine learning" is likely appropriate.

Getting the field definition wrong exposes the petition to the officer defining the field differently — and then finding the petitioner is not at the top of the field the officer has defined.

2. Competitive landscape description

After defining the field, the petition must describe what distinguished performance looks like in that field at the national or international level. For researchers: what citation count, h-index, or institutional affiliation marks a person as elite? For practitioners: what roles, compensation levels, or recognitions mark top-tier status?

This section is often poorly written because attorneys are not domain experts. Expert letters from recognized practitioners in the field can supply this analysis — but the petition letter must synthesize it, not just attach the letters.

3. Position-in-distribution argument

Having established what elite looks like, the petition must then argue that the petitioner's record places them in that elite. This is an explicit comparative claim, not an assertion. It should reference specific data: "The petitioner's citation count of [X] places them in the top [Y]% of authors in this field, based on [source]."

The comparative group must be appropriate. Comparing a mid-career practitioner to all practitioners at all career stages will dilute the argument. The comparison should be to practitioners at comparable career stage and institutional context.

4. Cross-criteria totality synthesis

The final merits section is not a second chance to argue individual criteria. It is the place to show how criteria evidence combines to establish a pattern of sustained recognition. An award (C1) plus selective membership (C2) plus cited scholarly articles (C6) plus high salary (C9) tells a coherent story when synthesized: the petitioner is recognized at multiple levels — by institutions (membership), by the broader field (citations), by the market (salary), and by award committees (prizes). The synthesis creates an argument that none of the individual criteria pieces, standing alone, could make.

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Why Independent Evidence Matters More at Step 2

At Step 1, evidence quality is about whether the form of evidence matches the criterion definition. An award certificate satisfies C1 if the awarding organization is recognized in the field.

At Step 2, evidence quality shifts to a different question: how independently recognized is this person beyond their own employer and immediate collaborators?

USCIS adjudicators at Step 2 discount:

• Recognition that comes primarily from the employer (internal awards, employer-issued titles)
• Expert letters from co-authors, supervisors, or direct collaborators
• Evidence of strong performance within an organization, without evidence that the field outside the organization has taken notice

The Mukherji court specifically criticized USCIS's focus on whether the petitioner had received recent awards — but it did not eliminate the independent recognition requirement. The petition must show that the field as a whole, not just the petitioner's employer or immediate network, recognizes the extraordinary work.

For attorneys advising clients before filing: the single highest-leverage investment before filing is documentation of independent external recognition — letters from practitioners with no connection to the client, citations or adoptions by identified third-party organizations, and media coverage in industry or mainstream publications not arranged by the client or employer. See Expert Letters That Win EB1A Cases for the specific requirements for C5 letters.

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After a Step 2 Denial: Three Strategic Options

When a petition is denied at the final merits stage — especially when USCIS has conceded that criteria were satisfied — three paths exist.

Option 1: File a new petition with a strengthened record

If the original petition lacked a standalone Final Merits section, or if independent evidence can be added (new expert letters from genuinely independent practitioners, documented third-party adoptions of contributions), a new I-140 filing with a reconstructed petition letter is often the fastest path to approval.

The denied petition is part of the record and will be cited by USCIS in the new adjudication. The new filing must address — explicitly and directly — the specific grounds USCIS cited for the Step 2 denial. A restatement of the same argument will not move the outcome.

Option 2: Appeal to the Administrative Appeals Office

AAO appeal is an administrative process with an average timeline of 12–18 months. Post-Mukherji, the AAO's position on the legal validity of the final merits framework is uncertain — the AAO applies USCIS Policy Manual standards, which still include Step 2. However, the Mukherji ruling can be cited as persuasive authority in the appellate brief, and the Loper Bright argument about judicial review of legal questions is available.

The primary advantage of AAO appeal over federal court is that it does not require filing fees and retainer costs of federal litigation. The disadvantage is timeline and the AAO's institutional reluctance to abandon an approach it has applied for fifteen years.

Option 3: Federal court challenge under the APA

Mukherji has made federal court challenges significantly more viable. The three-ground APA argument — excess authority, procedural violation, and arbitrary/capricious — is now supported by a published district court ruling applying Loper Bright directly to the final merits framework.

Federal court is most appropriate where: USCIS conceded criteria were met; the denial basis is clearly the Step 2 analysis; and the attorney can develop a record showing the denial was arbitrary (e.g., because USCIS accepted similar evidence in prior approvals, or the denial reasoning contradicts the regulatory text). Direct approval — rather than mere remand — is the outcome to seek, and Mukherji demonstrates that courts are willing to order it.

For attorneys managing client expectations: as noted by Mandamus Lawyers, bypassing the AAO and going directly to federal court preserves the strongest legal arguments because it prevents USCIS from supplementing its reasoning through administrative review.

See EB1A RFE Response Guide for the parallel framework on responding to RFEs before a denial is issued, and AAO EB1A Decisions 2024–2025 for documented patterns in how the AAO currently handles Step 2 challenges.

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Practical Checklist for Attorneys: Step 2 Pre-Filing Audit

Before submitting an I-140, verify:

Field and narrative:

• Field is defined at the correct level of specificity — not so broad that the petitioner cannot be shown to be elite, not so narrow that the field is unrecognizable to adjudicators
• Petition letter includes a standalone Final Merits section (not just a summary of criteria arguments)
• Final Merits section explicitly defines the competitive landscape and places the petitioner within it with evidence
• Comparative argument uses an appropriate peer group (comparable career stage, institutional context)

Evidence independence:

• Expert letters come from practitioners with no employment, collaboration, or financial relationship to the petitioner
• Letters address field-wide significance of contributions, not just technical quality
• Recognition evidence (awards, memberships, citations) comes from organizations external to the employer
• At least some acclaim evidence is recent — within the last 3–5 years

Criteria interaction:

• Petition argues at least 4–5 criteria (not exactly 3 — see EB1A Petition Guide)
• Individual criteria arguments are written to feed the totality synthesis, not stand in isolation
• Final merits section references all criteria collectively, not just the strongest two or three

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What Comes Next for the Final Merits Framework

Mukherji v. Miller is the first federal district court ruling to directly hold the Kazarian-based final merits determination unlawfully adopted. It is not the last word.

USCIS may appeal the decision to the Eighth Circuit, which would either affirm or reverse — and create appellate precedent that currently does not exist on this question. Other district courts may follow Mukherji or decline to follow it, creating a circuit split that could eventually reach the Supreme Court.

In the interim, the strategic landscape for extraordinary ability petitions has shifted. The final merits determination is now a contested legal question, not a settled agency prerogative. For petitions filed in the District of Nebraska, Mukherji creates binding district-level precedent. For petitions filed or challenged in other jurisdictions, it creates a live legal argument that USCIS cannot simply dismiss.

The most immediate practical impact: any attorney preparing an EB-1A petition today should build the final merits section with the assumption that it may need to withstand federal court scrutiny — not just AAO review. That means explicit regulatory grounding, a comparative field analysis with sourced data, and a synthesis of independent evidence that clearly establishes the petitioner among the field's elite.

For attorneys considering whether the current evidence record is sufficient for a final merits argument that will hold up — see how Immigration Copilot structures the evidence-to-totality mapping before the petition letter is written.

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For deeper coverage of related topics, see:

• Kazarian Standard: Complete EB1A Reference — the two-step framework in full
• Kazarian Step 2: Writing the Final Merits Argument — how to structure the totality section
• AAO EB1A Decisions 2024–2025 — how the AAO is currently applying Step 2
• EB1A RFE Prevention Playbook — avoiding the most common RFE triggers before they appear