PA-2025-16: EB-1A Non-Discretionary Review and What It Means for 2026 Petitions

The legal framework for EB-1A adjudication has been compressed from two sides since August 2025. USCIS's Policy Alert PA-2025-16 eliminated the discretionary override that officers once used to deny petitions after both Kazarian steps were satisfied. Then Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb. Jan. 28, 2026), challenged the legitimacy of Kazarian's Step 2 final merits analysis itself.

For attorneys building EB-1A petitions in 2026, these developments matter in different ways. PA-2025-16 changes adjudication doctrine. Mukherji creates a federal litigation pathway. Neither development makes an EB-1A petition easier to win — the 43% regular processing approval rate in February 2026 makes that clear. But both narrow the grounds on which USCIS can legally deny a well-prepared petition.

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What PA-2025-16 Actually Says About EB-1A

USCIS issued Policy Alert PA-2025-16 on August 19, 2025. The headline purpose was to assign "overwhelmingly negative" discretionary weight to applicants who had endorsed or promoted antisemitic terrorist organizations. That headline overshadowed the more structurally significant change buried in the policy text.

The policy alert updated USCIS Policy Manual Volume 1, Part E, Chapter 8 (Discretionary Analysis) to clarify the scope of discretion across immigration categories. For employment-based immigrants, the policy states that the exercise of discretion in adjudicating an employment-based immigrant petition is limited to cases where the alien is seeking a National Interest Waiver under INA § 203(b)(2)(B).

This clarification has a narrow but important effect on EB-1A. Prior to PA-2025-16, a small category of denials rested on a quasi-discretionary "totality" judgment where an officer agreed the statutory criteria were met but denied the petition anyway on a vague sense that the petitioner was not "truly" at the top of the field. PA-2025-16 closed that specific pathway. If the criteria are satisfied and the Kazarian two-step is satisfied, no separate discretionary override is available for EB-1A.

The practical significance is calibrated, not transformative. Most Step 2 denials were never framed as "discretionary" — officers denied petitions at Step 2 by concluding that the totality of evidence did not establish sustained national or international acclaim. PA-2025-16 does not reach that conclusion. What it reaches is the narrower practice of applying a freestanding "public interest" or "immigration benefit" balancing test to EB-1A cases — a practice borrowed from adjustment of status adjudications that had no statutory basis in the employment-based immigrant context.

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Discretion vs. Step 2: Why the Distinction Matters

The confusion between "discretion" and "Step 2 final merits" is widespread in post-PA-2025-16 commentary. They are not the same thing.

Discretion in immigration law refers to the officer's judgment about whether to grant relief as a matter of grace even when statutory requirements are met — or to deny relief despite statutory eligibility. Discretionary analysis is explicit in adjustment of status, parole, waivers, and NIW petitions. For NIW under 8 CFR 204.5(k), the officer evaluates whether granting the petition is "in the national interest" — a judgment call layered on top of eligibility.

Kazarian Step 2 final merits is not discretion. It is a statutory interpretation of what 8 CFR 204.5(h)(3) actually requires when it states that the petitioner must demonstrate "sustained national or international acclaim." Step 2 asks whether the totality of submitted evidence establishes that acclaim at the level the statute requires — it is framed as a merits evaluation, not a grace judgment.

Why does this distinction matter for attorneys? Because the two operate through different legal challenge channels. A petition denied on "discretionary" grounds after PA-2025-16 has a straightforward challenge: USCIS exceeded its authority under the policy manual. A petition denied at Step 2 has a different challenge: the agency applied an unlawfully created framework without proper rulemaking. The first challenge is administrative; the second (after Mukherji) is structural.

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Mukherji v. Miller: The Step 2 Challenge

On January 28, 2026, U.S. District Judge Joseph F. Bataillon in Nebraska issued a ruling that immigration practitioners had been building toward since the Supreme Court's 2024 decision in Loper Bright Enterprises v. Raimondo eliminated Chevron deference.

In Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb. 2026), the petitioner — Indian journalist Anahita Mukherji — had met five of the ten 8 CFR 204.5(h)(3) regulatory criteria. USCIS denied the petition at Step 2, concluding that despite meeting five criteria, her acclaim was not "sustained" because most of her recognition occurred before 2015.

Judge Bataillon vacated the denial and ordered the petition approved. The court's reasoning rested on three findings:

1. The two-step framework is a legislative rule without APA rulemaking. USCIS adopted the Kazarian Step 2 framework through a 2010 policy memorandum — not through notice-and-comment rulemaking. The court found this violated the Administrative Procedure Act. An agency that creates a framework that substantively changes how decisions are made must follow formal rulemaking procedures.

2. The "recency" requirement exists nowhere in statute. USCIS's demand that recognition be current has no basis in 8 CFR 204.5(h)(3) or INA § 203(b)(1)(A). The regulation requires "sustained" acclaim, not "recent" acclaim. The court found USCIS invented an eligibility requirement without statutory authority, violating Encino Motorcars standards for unexplained regulatory departure.

3. Post-Loper Bright scrutiny. Without Chevron deference, the court applied independent judgment to USCIS's interpretation. The Step 2 framework did not survive that scrutiny when applied to deny a petitioner who met five enumerated criteria.

The ruling is a district court decision — it binds no other court and does not represent AAO precedent. USCIS will continue applying Step 2 in routine adjudications. But as a litigation tool, Mukherji is significant: it establishes a federal precedent that the Step 2 framework lacks formal regulatory authority and creates a viable APA challenge pathway that can produce direct approval (not merely remand).

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The 2026 Adjudication Reality: Why Rates Are Still Falling

PA-2025-16 eliminated discretionary overrides. Mukherji created a litigation challenge to Step 2. Neither development has improved routine adjudication outcomes — and the approval rate data shows why.

EB-1A approval rates in the first three quarters of FY2025:

• Q1 FY2025 (Oct–Dec 2024): 74.9%
• Q2 FY2025 (Jan–Mar 2025): 72.7%
• Q3 FY2025 (Apr–Jun 2025): 67%

And the more granular processing-track split from Lawfully's February 2026 filing data:

• Regular processing: 43% (up from 31% in September 2025)
• Premium processing: 89%

The 46-percentage-point gap is not explained by PA-2025-16 or Mukherji. The same legal standard applies to both tracks. The gap reflects evidence quality — specifically, the difference between petitions prepared by experienced counsel who invest in documentation versus petitions filed without thorough evidence strategy.

Several factors are driving the overall rate decline regardless of policy framework:

Volume surge compressing officer attention. EB-1A filings increased approximately 50% year-over-year in FY2025. The backlog reached 16,000+ pending cases. Officers reviewing high volumes are applying stricter threshold scrutiny at Step 1 — particularly for Criterion 5 (original contributions) and Criterion 8 (critical role) — before even reaching Step 2.

RFE rates at 40–50%. Nearly half of filed EB-1A petitions receive Requests for Evidence before a final decision. RFEs pause the case for 87–180 days, expand the backlog, and create a second evidence submission window where the case can fail if the response does not directly address the officer's stated deficiencies.

The regular/premium documentation gap. Attorneys filing premium-processed petitions are investing more in pre-filing documentation strategy. The 89% premium approval rate reflects this investment. The 43% regular rate reflects the full population of filings including those without comprehensive legal preparation.

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How to Build a PA-2025-16-Aligned Petition in 2026

The policy framework created by PA-2025-16 and Mukherji points toward a specific petition architecture. The operative principle: every denial must be grounded in a specific statutory deficiency. There is no longer a residual catch-all "not impressive enough" denial mechanism. Build petitions that eliminate every specific statutory deficiency.

1. Build Step 2 argument into each criterion section, not as a separate conclusion.

Under a non-discretionary framework, the criterion sections must carry the totality argument. Each criterion section should state: (a) what the regulatory language requires, (b) how the evidence satisfies that language, and (c) why this evidence, in context, is characteristic of the small percentage at the top of the field.

Reserving the "big picture" argument for a trailing summary conclusion leaves the case vulnerable. The summary conclusion cannot save criterion sections that are themselves insufficient. Officers making non-discretionary determinations look to whether the evidence for each criterion establishes the required level — not whether a concluding argument asserts it.

2. Eliminate employer-specific evidence from Criterion 5 (original contributions).

The most common Step 1 failure pattern for Criterion 5 is evidence that demonstrates contribution to the petitioner's employer rather than to the field. Under 8 CFR 204.5(h)(3)(v), the contribution must be "of major significance in the field" — not to the company. Evidence of adoption, citation, or application by entities outside the employer is required.

3. For Criterion 8 (critical role), document organizational distinction through external evidence.

8 CFR 204.5(h)(3)(viii) requires a critical or essential role for an organization with a "distinguished reputation." The organization's distinction must be shown through external evidence — media coverage, industry rankings, regulatory recognition. The petitioner's characterization of the employer's prestige is insufficient; independent documentation is required.

4. Select criteria that can be proven fully rather than partially.

The non-discretionary framework means a partially-proven criterion is a liability. Officers are required to evaluate whether the regulatory standard is fully satisfied. A criterion section that shows some but not complete qualification creates a denial hook. Better strategy: choose three to four criteria that can be proven to full regulatory standard, rather than six criteria with partial proof on each.

5. Document comparative field position explicitly.

Step 2 requires that the totality of evidence establish the petitioner as among the small percentage at the very top of the field. That comparative analysis — where the petitioner stands relative to peers — must be explicit. Implied standing is not sufficient after PA-2025-16. Expert letters, citation counts, award records, or salary comparisons that show position within the field distribution are the evidence type that survives non-discretionary scrutiny.

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Preserving the Federal Court Challenge Option

For cases that fail at Step 2 after PA-2025-16, the Mukherji framework provides a federal litigation pathway. Preserving this option requires specific actions during the administrative process.

Administrative record documentation. Federal courts review the administrative record. The evidence and arguments submitted during adjudication and on appeal are the record the court will review. APA challenges succeed when the record shows that the petitioner met the statutory criteria and the agency's denial was not grounded in the record evidence. RFE responses should explicitly state the regulatory language being satisfied.

Notice of Appeal to the AAO before federal suit. The APA generally requires exhaustion of administrative remedies before federal review. Filing Form I-290B (Notice of Appeal) preserves the record and the exhaustion argument. The Mukherji court's reasoning applies to denials that import requirements not found in statute — the "recency" requirement, the "trending upward" requirement, and similar agency-invented standards.

Post-Loper Bright argument framing. USCIS policy memoranda no longer receive judicial deference on questions of statutory interpretation. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), eliminated the Chevron framework. APA challenges now argue: (1) this is a pure statutory interpretation question, (2) the court applies independent judgment, (3) 8 CFR 204.5(h)(3) requires evidence of the enumerated type, (4) the petitioner provided it, (5) the denial imposed an uncodified requirement, (6) the court should vacate.

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Interaction with the USCIS Policy Manual

PA-2025-16 updated four chapters of the USCIS Policy Manual: Volume 1, Part E, Chapter 8 (Discretionary Analysis); Volume 2, Part A, Chapter 4 (Extension/Change of Status); Volume 2, Part F, Chapter 8 (Student Status); and Volume 7, Part A, Chapter 10 (Adjustment of Status). The EB-1A implications flow primarily from Volume 1, Part E, Chapter 8.

A second policy alert, PA-2025-26 (November 27, 2025), further refined the discretion framework. The cumulative effect of the two alerts: employment-based I-140 adjudication is now explicitly bounded to the statutory criteria and the adjudicative steps derived from them — no separate discretion layer.

For attorneys reviewing the USCIS Policy Manual EB1A attorney guide, the relevant policy manual sections to re-read in the PA-2025-16 context are Volume 1, Part E, Chapter 8 (now non-discretionary for EB-1A) and Volume 6, Part F, Chapter 2 (Extraordinary Ability — criteria and Step 2 framework). The absence of any discretionary language in Volume 6, Part F, Chapter 2 is now a binding policy commitment, not just an observation.

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Implications for the AAO and MTR Strategy

The AAO's 2024–2025 adjudication patterns were established under the framework before PA-2025-16. The AAO applies the same Kazarian two-step but — like field officers — was not explicitly restricted from using quasi-discretionary reasoning at Step 2 in the pre-August 2025 period.

Under the post-PA-2025-16 framework, Motions to Reconsider (I-290B MTR) should cite the policy alert directly when the denial applied a discretionary rationale beyond the statutory criteria. MTR success requires demonstrating an error of law or fact in the original decision — a post-August 2025 denial that uses discretionary reasoning for an EB-1A I-140 is precisely such an error.

For denials that are properly grounded in Step 2 (not discretion), the MTR standard requires showing the Step 2 analysis was factually wrong — that the evidence did establish sustained acclaim and the officer failed to properly weigh it. The RFE response playbook applies here: the MTR response must engage directly with the specific Step 2 deficiency the officer identified, not re-submit the same evidence with a new cover letter.

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The 2026 EB-1A Landscape: What to Expect

For the remainder of 2026, the most likely adjudication reality is:

• Step 2 will continue to be applied. Mukherji is a district court ruling, not binding precedent, and USCIS has not formally changed its adjudication guidance for Step 2.
• The federal litigation channel is real but slow. Federal district court proceedings take 12–24 months. Petitioners denied at Step 2 with strong evidence will need to weigh litigation against refiling with supplemental evidence.
• Volume will remain elevated. The EB-1A approval rate decline data reflects a structural increase in filings, not a temporary spike. Officers will continue applying heightened scrutiny.
• The premium vs. regular processing gap will persist. The gap reflects evidence preparation quality. Attorneys who invest in pre-filing evidence documentation will continue to see 80%+ approval rates regardless of the policy environment.

Immigration Copilot's petition generation system is built for the post-PA-2025-16 framework — each criterion section is generated with explicit regulatory language, comparative field analysis, and integrated Step 2 totality framing. Start a free trial to see how automated evidence mapping can close the gap between regular and premium processing outcomes.

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Summary for Practitioners

• PA-2025-16 (Aug 19, 2025): Discretion in EB-1A I-140s is eliminated. The only denial pathways are Step 1 (criteria threshold) and Step 2 (totality/acclaim). Officers cannot use a freestanding discretionary override.
• PA-2025-26 (Nov 27, 2025): Follow-on alert further restricting discretion in employment-based categories.
• Mukherji v. Miller (Jan 28, 2026): Federal court ruled Step 2 framework was created without proper APA rulemaking. Petitioners denied at Step 2 despite meeting criteria have a federal court challenge pathway under 5 U.S.C. § 706.
• Current approval rates: 43% (regular), 89% (premium), per February 2026 data. The gap is evidence quality, not adjudication standard.
• 2026 strategy: Build evidence that satisfies each criterion to full regulatory standard. Integrate Step 2 totality argument into criterion sections. Preserve APA challenge grounds. Consider premium processing when evidence is fully prepared at filing.