When USCIS denies an EB-1A or NIW petition, a federal lawsuit is one of the options alongside a new filing, a motion or an appeal. The legal basis is the Administrative Procedure Act (APA): "a person suffering legal wrong because of agency action" is "entitled to judicial review thereof" (5 U.S.C. 702). The court can "hold unlawful and set aside agency action" found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" (5 U.S.C. 706(2)(A)).
As of October 23, 2026, EB-1A and NIW denials sit in very different places in court. This guide explains how an APA case works, why NIW cases face a jurisdictional wall in several circuits, and what recent EB-1A rulings show. Our guide to options after an I-140 denial compares litigation with refiling and appeals.
- The Administrative Procedure Act lets a federal court set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
- Under 5 U.S.C. 704, an AAO appeal is generally not required before suing unless a rule requires it and makes the decision inoperative meanwhile.
- Civil actions against the United States must generally be filed within six years after the claim accrues, under 28 U.S.C. 2401(a).
- The Fifth Circuit held in Flores v. Garland (June 23, 2023) that review of national interest waiver denials is barred by 8 U.S.C. 1252(a)(2)(B)(ii), joining the Ninth, Eleventh and D.C. Circuits.
- In Mukherji v. Miller (D. Neb., Jan. 28, 2026), a court ordered an EB-1A petition approved, but another judge in the same district declined to follow it in September 2026.
- Courts review the administrative record USCIS had, not new evidence.
How does an APA lawsuit against USCIS work?
It is a review of USCIS's decision, not a new hearing. The court reviews "the whole record or those parts of it cited by a party" (5 U.S.C. 706), which in practice means the petition, the evidence and the decision USCIS had. New evidence you did not submit to USCIS usually cannot fix a denial in court; that is what a new petition or a motion is for.
The action must be final. The APA reviews "final agency action for which there is no other adequate remedy in a court" (5 U.S.C. 704). An I-140 denial is the typical example.
Common APA arguments in EB-1A cases include that USCIS applied the wrong legal standard, ignored evidence, or imposed requirements the regulation does not contain. The framework USCIS uses, criteria first and then a final merits determination, is explained in our guides to the Kazarian two-step and the final merits determination.
Do you have to appeal to the AAO first?
Usually not. The APA says agency action that is otherwise final is final for review "whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority" (5 U.S.C. 704).
Skipping the AAO is not always wise, though. Because the court looks only at the existing record, an applicant with new evidence may do better with a motion or a fresh petition. Our explainer on AAO precedent decisions covers how the appeals office works.
How long do you have to sue?
The general limit for civil actions against the United States is six years: such an action "shall be barred unless the complaint is filed within six years after the right of action first accrues" (28 U.S.C. 2401(a)). That is a long window, but delay rarely helps; policies, evidence and your status can change in the meantime.
Can you sue over an NIW denial?
Several appeals courts say no, at least for the waiver decision itself. The Fifth Circuit framed the question as whether an NIW denial is a decision whose authority is "specified . . . to be in the discretion of the Attorney General," such that "no court shall have jurisdiction to review" it under 8 U.S.C. 1252(a)(2)(B) (Flores v. Garland, No. 22-20419 (5th Cir. June 23, 2023)). Its answer:
"For those reasons, we hold that review of national-interest waiver denials is jurisdictionally barred by § 1252(a)(2)(B)(ii)." Flores v. Garland, No. 22-20419, slip op. at 13 (5th Cir. 2023)
The court noted that "the Ninth, Eleventh, and D.C. Circuits have decided that national-interest waiver denials are unreviewable," citing the Eleventh Circuit's Brasil decision, the Ninth Circuit's Poursina decision and the D.C. Circuit's Zhu decision (Flores v. Garland). The Ninth Circuit in Poursina held that a constitutional claim "is not subject to" the bar, and acknowledged review of certain legal conclusions on nondiscretionary grounds, but found that the applicant's other claims "simply repackage" the core grievance that USCIS should have granted the waiver (Poursina v. USCIS, No. 17-16579 (9th Cir. Aug. 28, 2019)).
For NIW applicants, that usually makes a new, stronger petition or a motion more practical than a lawsuit, unless there is a clear legal or constitutional error. Our guide to NIW requests for evidence by prong shows where NIW cases typically falter.
What have courts done with EB-1A denials recently?
EB-1A is not a waiver, and courts have continued to reach the merits of EB-1A denials, as two 2026 cases from Nebraska show. In Mukherji v. Miller, Senior Judge Joseph F. Bataillon held on January 28, 2026 that USCIS adopted the EB-1A final merits step without required notice-and-comment rulemaking, and ordered the petition approved (Mukherji v. Miller, Doc. 24, D. Neb. No. 4:24-cv-03170). The government appealed to the Eighth Circuit and then dismissed its own appeal on June 10, 2026 (Mukherji v. Miller docket).
The ruling did not settle the question. In Agarwal v. Miller, Chief Judge Brian C. Buescher of the same court held that the two-step framework is an interpretive rule consistent with the statute, declined to follow Mukherji, and dismissed the case with prejudice on September 25, 2026 (Agarwal v. Miller, Doc. 15, D. Neb. No. 4:26-cv-03049; docket).
| EB-1A denial | NIW denial | |
|---|---|---|
| APA review available? | Generally yes | Barred for the waiver decision in the 5th, 9th, 11th and D.C. Circuits |
| What the court reviews | The administrative record | Constitutional claims and certain legal questions only, in those circuits |
| Typical remedy | Remand to USCIS; occasionally an order to approve | Dismissal for lack of jurisdiction in those circuits |
| Recent example | Mukherji (approval ordered); Agarwal (dismissed) | Flores (dismissal affirmed) |
What this means for you
Litigation is a tool for legal errors on a complete record, not a substitute for stronger evidence.
- Read the denial for legal errors: a wrong standard, ignored evidence or an extra requirement.
- If the problem is thin evidence, a new petition or motion is usually the better path.
- For NIW denials, assume the waiver decision is not reviewable unless your attorney identifies a constitutional or legal issue.
- Keep your status and any pending applications in view while a case is in court.
Where to start
Before or after a denial, our free evaluation at /evaluate/ shows where your record is strongest and where it needs work, and Frank, our AI assistant at /frank, finds real opportunities for the criteria you are missing. Petitions are reviewed and filed by our partner law firm, Lai & Turner.
Sources
All checked October 23, 2026.
- 5 U.S.C. 702, 5 U.S.C. 704 and 5 U.S.C. 706 (Cornell LII). Right of review; final agency action and the appeal rule; review standards and the whole record.
- 28 U.S.C. 2401 (Cornell LII). Six-year limit for civil actions against the United States.
- Flores v. Garland, No. 22-20419 (5th Cir. June 23, 2023). NIW denials barred from review; survey of other circuits.
- Poursina v. USCIS, No. 17-16579 (9th Cir. Aug. 28, 2019). NIW discretion; constitutional claims and legal conclusions.
- Mukherji v. Miller, D. Neb. No. 4:24-cv-03170, Doc. 24 and docket. January 28, 2026 order; appeal dismissed June 10, 2026.
- Agarwal v. Miller, D. Neb. No. 4:26-cv-03049, Doc. 15 and docket. September 25, 2026 dismissal declining to follow Mukherji.
Frequently asked questions
Can I sue USCIS for denying my EB-1A petition?
Generally yes. An EB-1A denial is a final agency action that can be challenged in federal district court under the Administrative Procedure Act. The court asks whether the denial was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, based on the record USCIS had. If you win, the usual result is that the case goes back to USCIS, though a court can sometimes order approval.
Can I sue over an NIW denial?
It is much harder. The Fifth Circuit held in 2023 that review of national interest waiver denials is barred by 8 U.S.C. 1252(a)(2)(B)(ii), and it noted that the Ninth, Eleventh and D.C. Circuits had reached the same conclusion. The Ninth Circuit held that constitutional claims are not barred, but claims that simply repackage the argument that USCIS should have exercised its discretion differently are.
Do I have to appeal to the AAO before going to court?
Usually not. The APA says agency action that is otherwise final is final for court review whether or not you sought reconsideration or an appeal to a higher agency authority, unless the agency requires the appeal by rule and makes the decision inoperative while it is pending. Some applicants still use a motion or AAO appeal first, especially to add evidence, because a court reviews only the existing record.
How long do I have to file an APA lawsuit?
The general statute of limitations for civil actions against the United States is six years after the right of action first accrues, under 28 U.S.C. 2401(a). Waiting has practical costs, though: your circumstances, the policy landscape and your immigration status can all change. Talk to an attorney soon after a denial if you are considering litigation.
Can a court just give me the green card?
Rarely. Most successful APA cases end with the court setting aside the denial and sending the petition back to USCIS. In Mukherji v. Miller, a federal judge in Nebraska ordered an EB-1A petition approved after finding USCIS's final merits step unlawful, but another judge in the same district declined to follow that reasoning in September 2026, so the outcome depends heavily on the court and the claim.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
