What the Mukherji v. Miller Decision Means for EB-1A Petitioners
What the Mukherji v. Miller Decision Means for EB-1A Petitioners
By Shaune D. Fraser, Esq. | Fraser Immigration Law PLLC
If you’ve applied for — or been denied — an EB-1A green card, a federal court decision issued on January 28, 2026 may change everything.
In Mukherji v. Miller, a U.S. District Court in Nebraska ruled that the process USCIS has used to deny EB-1A “extraordinary ability” petitions since 2010 was never lawfully created. The court vacated the denial and ordered USCIS to approve the petition outright.
Here’s what happened, why it matters, and what it could mean for your case.
The Problem: USCIS’s Two-Step Denial Machine
To qualify for EB-1A, you must show evidence of extraordinary ability in your field — typically by meeting at least three of ten criteria set out in the regulations (awards, publications, judging, original contributions, and others).
Since 2010, USCIS has added an extra hurdle. Even when applicants clearly meet three or more criteria, USCIS applies a second step — a subjective“final merits determination”— where an officer decides whether your evidence, taken as a whole, really shows you’re at the top of your field. This second step has been the basis for thousands of EB-1A denials.
The court in Mukherji found that this second step is unlawful.
Here’s how the shift worked in practice:
Before 2010:
• What you had to show: Meet 3 of 10 regulatory criteria
• Who decided: Criteria-based review against regulatory standards
• Standard applied: Preponderance of the evidence
• Result if criteria met: Eligibility established
After 2010 (Kazarian Policy):
• What you had to show: Meet 3 of 10 criteria plus pass a subjective “final merits determination”
• Who decided: Officer’s individual judgment on “totality of the evidence”
• Standard applied: Undefined — no articulated threshold
• Result if criteria met: Eligibility not established — officer could still deny
What Happened in This Case
Anahita Mukherji, an accomplished Indian journalist, filed an EB-1A petition. USCIS agreed she met five of the ten criteria — nearly double the three required. But USCIS denied her petition anyway at the second step, claiming her most notable achievements were “too old” (before 2016) and that she hadn’t proven “sustained” acclaim.
The court rejected this reasoning entirely and found USCIS acted unlawfully on two independent grounds.
Why the Court Said USCIS Got It Wrong
1. The "Final Merits" Test Was Never Properly Adopted
The court found that USCIS’s two-step process:
• Replaced a 20-year policy without acknowledging the change. From 1991 to 2010, meeting the criteria was enough. USCIS silently rewrote the rules.
• Skipped required rulemaking procedures. Federal agencies must go through a public notice-and-comment process before creating new substantive rules. USCIS never did this — it adopted the two-step test through an internal memo.
• Never explained why the change was needed. The law requires agencies to justify policy changes. USCIS offered no justification.
The court’s conclusion: “The two-tier analysis was not valid at its inception.”
2. The Denial Itself Made No Sense
Even under its own framework, the court found USCIS’s denial was arbitrary:
• No clear standard. The officer never explained what level of evidence would have been sufficient. The court found “no articulated standard, objective, or specific criteria” behind the denial.
• An invented "recency" requirement. USCIS penalized Ms. Mukherji because her major awards came before 2016. But the statute says extraordinary ability “has been demonstrated” — past tense. There is no legal requirement to keep winning awards indefinitely.
• USCIS broke its own rules. USCIS’s own policy manual requires officers to state “specific and legal reasons” for a denial. The officer here did not.
The court ordered USCIS to approve the petition, finding there was "nothing else left for the Agency to do."
The "Sustained" Acclaim Problem
One of the most damaging aspects of USCIS’s approach — and one the court directly addressed — is how the agency interprets “sustained national or international acclaim.”
In Ms. Mukherji’s case, USCIS conceded her extraordinary achievements but wrote that “the record lacks sufficient evidence to support your sustained national or international acclaim after 2015.” The agency went further, stating that “it appears that all of your national acclaim as a journalist in the field of arts (public interest journalism) occurred prior to 2016.”
In other words, USCIS treated “sustained” as a requirement to continuously produce new, award-winning work indefinitely — as if acclaim has an expiration date.
To be clear, “sustained” acclaim serves an important purpose in the statute: it distinguishes a professional with a meaningful track record from someone with a single, isolated achievement. But USCIS has twisted this concept into something Congress never intended — a demand for perpetual peak-level output. There is a wide gap between a one-hit wonder and someone who must win new awards every year to remain “extraordinary.” The statute draws the line at the former. USCIS has been drawing it at the latter.
This is a pattern we see across EB-1A adjudications — specifically among petitioners who have already qualified under three or more criteria and are denied solely at the final merits stage. The denials typically rely on one of three rationales: (i) the petitioner’s achievements are not reflective of being among the small percentage at the very top of the field; (ii) the petitioner’s career does not reflect sustained national or international acclaim; or (iii) there is a gap in the petitioner’s acclaim, or the achievements at an extraordinary level are not sufficiently recent.
Consider the following:
• A biomedical researcher qualifies under awards, original contributions, and scholarly articles. Her most-cited paper introduced a novel methodology now adopted across her field. USCIS acknowledges all three criteria are met — then denies at the final merits determination, reasoning that her publication record, while significant, does not place her among the “small percentage at the very top” of biomedical research. The agency offers no benchmark for what the “top” looks like, no comparison to peers, and no explanation of what additional evidence would have sufficed.
• A structural engineer qualifies under judging, original contributions, and leading role. He served as a peer reviewer for top journals, developed a seismic design method adopted by multiple firms, and led the engineering team on a nationally recognized infrastructure project. USCIS concedes all three criteria — then denies at the final merits determination because his most prominent project concluded four years ago. The officer concludes that the petitioner’s career does not reflect “sustained” acclaim, treating a gap between major projects as evidence that his extraordinary ability has lapsed.
• A documentary filmmaker qualifies under awards, published material, and leading role. She won multiple international film festival awards, was profiled in major media outlets, and served as lead director at a distinguished production company. USCIS grants all three criteria — then denies at the final merits determination because her last major award was in 2019. The officer questions whether her acclaim is sufficiently “current,” treating the absence of a recent accolade as a gap that undermines an otherwise extraordinary record.
• An athlete qualifies under awards, membership, published material, and leading role. He earned internationally recognized prizes in his sport, was selected to Olympic, European Championship, and National All-Star teams that require outstanding achievement for selection, has been the subject of extensive coverage in major sports media, and captained a club with an internationally distinguished record. USCIS concedes all four criteria — then denies at the final merits determination, finding that his achievements, while noteworthy, are not reflective of the “small percentage who have risen to the very top” because his most significant competitive honors were earned several seasons ago. The officer acknowledges the petitioner’s record of international-level competition but concludes that the evidence does not demonstrate acclaim that is sufficiently “sustained,” pointing to fewer recent selections and a decline in individual accolades as the petitioner’s career has progressed — as though the arc of an athletic career, rather than confirming extraordinary ability, somehow undermines it.
◦ Conversely, an athlete in the same sport qualifies under the same criteria — but faces the opposite denial. She achieved rapid international recognition early in her career: major tournament victories, national team selection, and featured coverage in global sports media, all within a compressed timeframe. USCIS concedes the criteria are met — then denies at the final merits determination, reasoning that her elite-level career has not been long enough to constitute “sustained” acclaim. The officer treats the brevity of time at the top as a deficiency, even though the statute requires that extraordinary ability “has been demonstrated” — not that it must have been demonstrated over a minimum number of years.
In each case, the petitioner cleared the regulatory bar Congress set. USCIS then used the final merits determination to deny the petition based on requirements that appear nowhere in the statute: that achievements must place the petitioner at an undefined pinnacle, that acclaim must be unbroken, and that extraordinary ability must be proven anew with every passing year.
The court rejected this entirely. It found “nothing in the statutory scheme” that requires a petitioner to stay indefinitely at the top of their field. The statute asks whether extraordinary ability “has been demonstrated” — past tense — through sustained acclaim. It does not require petitioners to perpetually re-prove their status through an unbroken string of new awards, publications, or recognition.
“Sustained” acclaim means a track record of recognition over a meaningful period — not a requirement to produce at the highest level forever. If you qualified under three criteria, you demonstrated extraordinary ability. The statute does not then ask whether you kept demonstrating it at the same intensity every year after.
Why This Matters for You
If you qualified under three or more EB-1A criteria and were still denied at the final merits determination, this decision speaks directly to your case. These are the denial patterns Mukherji calls into question:
“You met the criteria, but your acclaim isn’t sustained.” You proved awards, contributions, and judging — or any combination of three — and USCIS agreed. Then the officer denied your petition because the strongest evidence was from several years ago. The court found no statutory basis for requiring continuous, ongoing peak-level achievement.
“Your most significant work occurred too long ago.” USCIS discounted your evidence not because it was insufficient, but because it wasn’t recent enough. The court held that the statute uses the past tense — extraordinary ability “has been demonstrated” — and does not impose a freshness requirement.
“You satisfied the criteria, but we’re not persuaded overall.” This is the hallmark of the unlawful second step. USCIS concedes you met three or more criteria, then denies anyway based on a subjective, undefined “totality” assessment. Mukherji says that if you met the regulatory criteria, that should establish eligibility — the final merits determination that says otherwise was never lawfully adopted.
“The totality of the evidence does not establish you are at the very top.” USCIS officers issue this conclusion without explaining what “the very top” means, what additional evidence would satisfy them, or how the evidence they already accepted at Step One became insufficient at Step Two. The court held that denials without specific, articulated reasoning are arbitrary and capricious.
What You Can Do
If your EB-1A petition was denied under the “final merits determination,” this decision opens the door to challenge that denial. Possible next steps include:
• Filing a motion to reopen citing Mukherji
• Challenging the denial in federal court under the Administrative Procedure Act (APA)
• Strengthening a new or pending petition by arguing that meeting the regulatory criteria establishes eligibility
An important note on scope: Mukherji is a U.S. District Court decision from Nebraska — it is not a Circuit Court or Supreme Court ruling, and it does not create a nationwide injunction. USCIS may argue it applies only to the specific plaintiff or within that district. However, the court’s reasoning — particularly its APA analysis on the lack of notice-and-comment rulemaking — creates strong persuasive authority that other federal courts are likely to follow. We expect this decision to influence EB-1A adjudications well beyond Nebraska.
The Bottom Line
For fifteen years, USCIS has used an unlawful framework to deny extraordinary ability petitions from highly qualified individuals. A federal court has now said: enough.
At Fraser Immigration Law PLLC, we are prepared to use this decision on behalf of our clients in EB-1A, O-1A, and related extraordinary ability cases. If you received a denial notice that uses the phrase "final merits determination," "totality of the evidence," or questions whether your acclaim is "sustained" — contact our office for a case review to discuss how Mukherji may apply to your situation.
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