USCIS drops Mukherji appeal, leaving the EB-1A final merits test exposed

What Happened

USCIS has withdrawn its appeal in Mukherji v. Miller, the EB-1A extraordinary ability case that directly challenged the agency's two-step adjudication framework. The Eighth Circuit [dismissed the government's appeal](https://blog.cyrusmehta.com/2026/06/uscis-withdraws-appeal-in-mukherji-what-changes-and-what-does-not.html) after USCIS voluntarily moved to drop the case. Lead counsel Brian Green announced the withdrawal, which was [confirmed](https://www.murthy.com/2026/06/11/mukherji-appeal-dropped/) by multiple immigration law firms on June 11, 2026.

The withdrawal leaves intact [Judge Joseph Bataillon's January 28, 2026 ruling](https://www.murthy.com/2026/01/29/district-court-rules-uscis-use-of-final-merits-determination-in-eb1a-petitions/) in the U.S. District Court for the District of Nebraska (No. 4:24-CV-3170). That ruling held that USCIS's two-step evaluation framework for EB-1A petitions — specifically, the second-step "final merits determination" — violates the Administrative Procedure Act because it was adopted through an internal policy memo rather than notice-and-comment rulemaking. The court did not merely remand the case. It vacated the denial and ordered USCIS to approve the petition outright.

The 'Final Merits' Test, Explained

To qualify for an EB-1A green card, a petitioner must demonstrate "extraordinary ability" in the sciences, arts, education, business, or athletics under [INA § 203(b)(1)(A)](https://www.law.cornell.edu/uscode/text/8/1153). The regulation at [8 CFR § 204.5(h)(3)](https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-204/subpart-A/section-204.5) lists ten evidentiary criteria — nationally recognized awards, published material about the petitioner, judging, original contributions of major significance, and others — of which petitioners must satisfy at least three.

For nearly two decades after the regulation took effect in 1991, meeting three or more criteria was [sufficient to establish eligibility](https://www.fraserpllc.com/news-insights/what-the-mukherji-v-miller-decision-means-for-eb-1a-petitioners). That changed in 2010, when the Ninth Circuit decided [Kazarian v. USCIS, 596 F.3d 1115](https://cdn.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdf). Kazarian introduced a two-step analysis: first, determine whether the petitioner satisfies at least three criteria; second, evaluate whether the totality of the evidence demonstrates the petitioner has "risen to the very top of the field."

USCIS adopted this framework agency-wide through an internal policy memorandum in 2010, without formal rulemaking. In practice, the second step became the gate. USCIS could concede that a petitioner met three, four, or even five criteria, then still deny the petition for failing to show an undefined level of sustained acclaim. That is what happened in Mukherji.

What the Court Ruled

Anahita Mukherji, an Indian-national journalist, filed an I-140 EB-1A petition that USCIS [conceded met five of the ten regulatory criteria](https://blog.cyrusmehta.com/2026/02/federal-court-relies-on-loper-bright-to-overturn-eb-1-denial-based-on-the-final-merits-determination.html) — well above the required three. USCIS nevertheless denied the petition at the final merits stage, concluding she had not demonstrated sustained national or international acclaim.

Judge Bataillon's ruling rested on three pillars:

• APA violation: The final merits test is a substantive rule with "the force of law," not a mere interpretive guideline. USCIS was required to adopt it through notice-and-comment rulemaking under 5 U.S.C. § 553 — and never did.
• Unexplained policy reversal: USCIS replaced a two-decade one-step adjudication approach with a two-step framework without acknowledging the change — arbitrary and capricious under Encino Motorcars LLC v. Navarro, 579 U.S. 211 (2016), which requires agencies to explain policy reversals.
• Post-Loper Bright scrutiny: Citing Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which ended Chevron deference, the court held that the "validity of the final merits determination is clearly a question of law, not fact" — and courts, not agencies, decide questions of law.

The Statute Does Not Require 'Continuous' Top-of-Field Status

One of the ruling's most useful holdings targets USCIS's informal "recency" requirement. The court found ["nothing in the statutory scheme"](https://blog.cyrusmehta.com/2026/02/federal-court-relies-on-loper-bright-to-overturn-eb-1-denial-based-on-the-final-merits-determination.html) supporting a demand that petitioners prove they continuously maintained top-of-field status. The statute uses the past tense — extraordinary ability "has been demonstrated" — and does not require uninterrupted recognition.

This matters because practitioners have [reported](https://www.fraserpllc.com/news-insights/what-the-mukherji-v-miller-decision-means-for-eb-1a-petitioners) denials where USCIS penalized petitioners for accomplishments that were "several years old" while simultaneously denying others for careers deemed "too brief" to constitute sustained acclaim — contradictory standards with no basis in the regulatory text.

Why USCIS Withdrew — and Why It Matters

The withdrawal was strategic, not a policy concession. As immigration attorneys [Cyrus D. Mehta and Manjeeta Chowdhary argue](https://blog.cyrusmehta.com/2026/06/uscis-withdraws-appeal-in-mukherji-what-changes-and-what-does-not.html), an Eighth Circuit affirmance would have created binding appellate precedent with influence well beyond one petitioner. By withdrawing, USCIS avoided that risk while preserving room to keep applying the framework elsewhere.

The timing is notable. The only circuit court to directly address the Kazarian framework — the Fifth Circuit in Amin v. Mayorkas (2022) — upheld it, but that decision predates Loper Bright and relied on the now-overturned Chevron deference doctrine. As Mehta observes, the fact that USCIS retreated "in the conservative Eighth Circuit" signals that "after Loper Bright the final merits determination is vulnerable in any federal court."

USCIS has not rescinded its adjudicatory approach and does not appear to have withdrawn because it plans to. DHS may instead attempt to codify the framework through formal notice-and-comment rulemaking. But as Mehta warns, "even such a rule will not be immune from challenge under Loper Bright as there is nothing in the INA that authorizes a subjective second step analysis."

Who's Affected

The ruling matters more because EB-1A approval rates are falling. According to [USCIS data analyzed by Boundless](https://www.boundless.com/blog/uscis-q3-2025-data-eb1a-niw-trends), total EB-1A filings reached 29,582 in FY2025, about 50% higher than FY2024. But the Q4 FY2025 approval rate [fell to approximately 53.4%](https://manifestlaw.com/blog/immigration/news/new-uscis-data-q3-2025-eb1a-eb2-niw-approval-rates-decline/), and practitioners report that many denials happen at the Step Two final merits stage.

• EB-1A self-petitioners and employer-sponsored beneficiaries in any field — sciences, arts, education, business, athletics
• O-1A nonimmigrant petitioners, whose extraordinary ability adjudication uses a [similar two-step framework](https://www.uscis.gov/policy-manual/volume-2-part-m)
• Previously denied EB-1A petitioners who may now have stronger grounds for federal court challenges or motions to reopen
• Immigration attorneys preparing or litigating EB-1A and O-1A petitions

What Attorneys Should Know

Mukherji is persuasive authority in all federal courts but binding in none, because the voluntary withdrawal means no circuit precedent was created. USCIS has not revised the [Policy Manual](https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2) or issued guidance in response. Expect the agency to keep applying the Kazarian two-step framework unless a circuit court or formal rulemaking forces a change.

For litigation, the key arguments Mukherji supplies are: (1) the final merits test is a legislative rule requiring notice-and-comment, not an interpretive rule; (2) USCIS's unexplained reversal of a two-decade adjudication approach is arbitrary and capricious; and (3) under Loper Bright, courts owe no deference to USCIS's interpretation of what "extraordinary ability" requires beyond the regulatory text.

Watch for denial language that signals a Step Two gatekeeping problem: boilerplate conclusions that the petitioner "has not demonstrated sustained acclaim" after the agency has already conceded the regulatory criteria are met. As [practitioners have noted](https://natlawreview.com/article/federal-court-challenges-usciss-eb-1a-final-merits-denial-what-it-means), rigid formulations like "an applicant must always show" or "it is never sufficient to demonstrate" signal USCIS is applying unauthorized standards beyond the regulatory text.

• Key citations: INA § 203(b)(1)(A); 8 CFR § 204.5(h)(3)(i)-(x); 5 U.S.C. § 553(b); Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010); Loper Bright, 603 U.S. 369 (2024); Encino Motorcars, 579 U.S. 211 (2016)
• Amin v. Mayorkas (5th Cir. 2022) upheld the framework pre-Loper Bright — its reasoning is now undermined but not formally overruled
• No other circuit court has ruled on the EB-1A framework post-Loper Bright — the circuit law remains unsettled
• Previously denied petitioners may challenge under APA § 706(2)(A) (arbitrary and capricious standard) in the district where the applicant resides or where USCIS adjudicated the petition

What Applicants Should Do

Do not assume the final merits test is gone. USCIS will continue applying it, and most petitions will still face a holistic second-step review. But if you are denied at that stage, especially after meeting three or more criteria, you now have stronger options.

• If preparing an EB-1A petition: build evidence for at least three criteria AND a cohesive narrative showing sustained distinction in your field. Anticipate that USCIS will still evaluate your evidence holistically at Step Two.
• If your EB-1A was denied at the 'final merits' stage: consult an immigration attorney about federal court options. Mukherji provides persuasive authority that the framework USCIS used to deny you was adopted unlawfully.
• If you have a pending petition: monitor for USCIS Policy Manual updates. No changes have been announced, but the law is shifting.
• If your EB-1A was denied years ago based on the final merits test: discuss with your attorney whether a motion to reopen or a new filing makes strategic sense in light of this ruling.