As of October 21, 2026, the lawfulness of the EB-1A "final merits determination" depends on which Nebraska federal judge you ask. In Mukherji v. Miller, decided January 28, 2026, Senior Judge Joseph F. Bataillon held that USCIS adopted the step unlawfully and ordered a denied petition approved (Mukherji v. Miller, Memorandum and Order, Doc. 24). In Agarwal v. Miller, decided September 25, 2026, Chief Judge Brian C. Buescher of the same court upheld the step and said he declined to follow Mukherji (Agarwal v. Miller, Memorandum and Order, Doc. 15).
The government appealed Mukherji to the Eighth Circuit, then had that appeal dismissed on its own motion on June 10, 2026, so no appeals court has ruled (Mukherji v. Miller docket, D. Neb. No. 4:24-cv-03170). Meanwhile, the USCIS Policy Manual page that sets out the two-step review, current as of October 2, 2026, still tells officers to make a final merits determination (USCIS Policy Manual, Vol. 6, Part F, Ch. 2). For almost every petitioner, the step still applies.
- Mukherji v. Miller, No. 4:24-cv-03170 (D. Neb.), was decided on January 28, 2026 by Senior Judge Joseph F. Bataillon.
- Mukherji held that USCIS adopted the EB-1A final merits step without required notice-and-comment rulemaking and ordered the petition approved.
- The government appealed to the Eighth Circuit (No. 26-1578) and the appeal was dismissed on the government's own motion on June 10, 2026.
- Agarwal v. Miller, No. 4:26-cv-03049 (D. Neb.), was dismissed with prejudice on September 25, 2026 by Chief Judge Brian C. Buescher.
- Agarwal held the Kazarian two-step policy is an interpretive rule consistent with the statute and declined to follow Mukherji.
- As of October 21, 2026, the USCIS Policy Manual still directs officers to make a final merits determination.
What is the EB-1A final merits determination?
The regulation defines extraordinary ability as "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor" (8 CFR 204.5(h)(2)). It then lists ten evidentiary criteria, of which a petitioner without a one-time major award must meet at least three (8 CFR 204.5(h)(3)).
Since a December 22, 2010 policy memo that followed the Ninth Circuit's decision in Kazarian, USCIS has reviewed petitions in two steps: first whether at least three criteria are met, then whether the record as a whole shows sustained acclaim and a place at the very top of the field (Mukherji v. Miller, Doc. 24, pp. 6 to 8). The Policy Manual describes the second step this way:
"In the second step of the analysis, the officer should consider the petition in its entirety to determine eligibility according to the standard." USCIS Policy Manual, Vol. 6, Part F, Ch. 2, Section B.2 (current as of October 2, 2026)
We explain the framework in more depth in our guides to the Kazarian two-step and how to argue the final merits determination.
What did the court decide in Mukherji v. Miller?
The petitioner, Anahita Mukherji, is an Indian national journalist who filed an EB-1A petition on March 8, 2024 (Mukherji v. Miller, Doc. 24, p. 1). USCIS found she met five of the ten criteria but denied the petition at the final merits step, saying the record did not show sustained acclaim after 2015 (Mukherji v. Miller, Doc. 24, pp. 7, 10 to 11).
Judge Bataillon granted her summary judgment on two grounds. First, he held that the two-step test was a legislative change that required notice and comment:
"Further, the Court finds the agency unlawfully adopted its "final merits determination" test without notice and comment rulemaking." Mukherji v. Miller, No. 4:24CV3170, Memorandum and Order at 12 (D. Neb. Jan. 28, 2026)
He also found the 2010 change arbitrary and capricious because the agency did not acknowledge that it was departing from roughly 20 years of single-step practice or give adequate reasons, and he relied on Loper Bright to treat the question as one of law for the court (Mukherji v. Miller, Doc. 24, pp. 12 to 15). He noted that the agency had treated a similar two-step proposal as a substantive rule in a 1995 rulemaking that never became final (Mukherji v. Miller, Doc. 24, p. 9).
Second, and in the alternative, he found the denial itself arbitrary because the officer did not articulate a standard the petitioner failed to meet (Mukherji v. Miller, Doc. 24, pp. 15 to 17). On the sustained acclaim point, he wrote:
"Nor does the statute say anything about an individual being required to stay indefinitely at the top of their field." Mukherji v. Miller, Memorandum and Order at 17
Can a court order USCIS to approve an EB-1A?
In Mukherji, yes. The court did not simply send the case back for a new decision:
"The Court vacates the Agency's denial and remands the petition to the Agency with instructions to approve the petition because there is nothing else left for the Agency to do." Mukherji v. Miller, Memorandum and Order at 17
Judgment for the petitioner was entered the same day (Mukherji v. Miller docket, Doc. 25). The defendants filed a notice of appeal on March 27, 2026, the Eighth Circuit docketed it as No. 26-1578, and on June 10, 2026 the Eighth Circuit granted the appellant's motion to dismiss the appeal under Federal Rule of Appellate Procedure 42(b) and issued its mandate (Mukherji v. Miller docket, Docs. 26, 29, 30). An October 2026 post on AILA's Think Immigration blog likewise reports that USCIS asked the Eighth Circuit to dismiss its own appeal in June 2026 (AILA, Think Immigration, AILA Doc. No. 26100600).
Dropping the appeal ended that case. It did not change agency policy: the Policy Manual still contains the final merits step (USCIS Policy Manual, Vol. 6, Part F, Ch. 2).
What did the court decide in Agarwal v. Miller?
Prakhar Agarwal filed two EB-1A petitions. The first, filed March 21, 2025, was denied July 17, 2025; the second, filed September 15, 2025, was denied January 15, 2026. He alleged that both denials came at the final merits step after USCIS accepted that he met at least three criteria (Agarwal v. Miller, Doc. 15, p. 3). He sued on February 14, 2026, relying heavily on Mukherji (Agarwal v. Miller, Doc. 15, pp. 6, 15).
Chief Judge Buescher, who had already upheld the Kazarian policy in Etsy, Inc. v. Jaddou (May 25, 2023) and Agrawal v. Miller (September 12, 2025), granted the government's motion to dismiss (Agarwal v. Miller, Doc. 15, pp. 5 to 6). He held:
- Substance: the second step corresponds to the statute's "sustained national or international acclaim" requirement and the regulation's "very top of the field" definition, so it is authorized (Agarwal v. Miller, Doc. 15, pp. 10 to 12).
- Timeliness: the government lost this point. Under Corner Post, the claim accrued when the policy was applied to deny his petitions, so it was not time-barred (Agarwal v. Miller, Doc. 15, pp. 14 to 18).
- Notice and comment: the Kazarian policy is an interpretive rule, so the APA's notice-and-comment requirement did not apply (Agarwal v. Miller, Doc. 15, pp. 21 to 23).
- Reasoned explanation: even if the 2010 memo was a change, it showed awareness of the change and gave good reasons, such as simpler and more consistent decisions (Agarwal v. Miller, Doc. 15, pp. 24 to 26).
On Mukherji specifically, he wrote that "the Court declines to follow Mukherji because it is unsound and unconvincing" (Agarwal v. Miller, Doc. 15, p. 13). The opinion also records the government's position that all other courts addressing the issue that its counsel could find had reached the opposite conclusion from Mukherji (Agarwal v. Miller, Doc. 15, p. 6). The complaint was dismissed with prejudice (Agarwal v. Miller, Doc. 15, p. 29).
"Because the Kazarian policy is an "interpretive" rule, it is not subject to the notice-and-comment requirements that Agarwal asserts should have been followed." Agarwal v. Miller, No. 4:26CV3049, Memorandum and Order at 23 (D. Neb. Sept. 25, 2026)
When the United States or a federal officer sued in an official capacity is a party, a notice of appeal may be filed within 60 days after entry of judgment (Fed. R. App. P. 4(a)(1)(B)). The Agarwal judgment was entered September 25, 2026 (Agarwal v. Miller docket, Doc. 16). When we checked on October 21, 2026, the CourtListener copy of the docket, last updated October 2, 2026, showed no notice of appeal (Agarwal v. Miller docket, D. Neb. No. 4:26-cv-03049).
Is the final merits determination lawful?
There is no binding answer yet. Here is where things stand as of October 21, 2026.
| Item | Court or body | Status |
|---|---|---|
| Mukherji v. Miller, No. 4:24-cv-03170 | D. Neb., Senior Judge Bataillon | Final. Denial vacated, approval ordered Jan. 28, 2026 |
| Mukherji appeal, No. 26-1578 | Eighth Circuit | Dismissed on the appellant's motion June 10, 2026; no appellate ruling |
| Agarwal v. Miller, No. 4:26-cv-03049 | D. Neb., Chief Judge Buescher | Dismissed with prejudice Sept. 25, 2026; no notice of appeal on the docket we checked |
| AAO non-precedent decision of June 24, 2026 | USCIS Administrative Appeals Office | Declined to follow Mukherji; dismissed the appeal |
| Two-step review in the Policy Manual | USCIS | Still in force (page current as of Oct. 2, 2026) |
Sources: the court documents and agency pages linked in this section and above.
The AAO has addressed Mukherji directly. In a June 24, 2026 non-precedent decision, it said it is "not bound to follow a decision of a United States district court," noted that the petition before it was denied at the Texas Service Center, outside the Nebraska court's jurisdiction, and called the two-step process an interpretive rule, citing Nagaiah v. Allen (E.D. Pa. 2025), Agrawal v. Miller and Etsy (AAO, Non-Precedent Decision, June 24, 2026). USCIS says a non-precedent decision is binding on the parties involved but does not create or modify agency guidance (USCIS, The Administrative Appeals Office). We explain the difference in our guide to which AAO decisions actually bind.
What this means for you
For a petition you are preparing now, plan for the final merits step. The Policy Manual still tells the officer to weigh the whole record against the sustained acclaim and top-of-the-field standard (USCIS Policy Manual, Vol. 6, Part F, Ch. 2). Meeting three criteria is the floor, not the finish line.
The Mukherji opinion is still useful on one narrow point. The denial there rested on a lack of evidence of sustained acclaim after 2015, noting no awards or press about her since then, and the court found nothing in the statute requiring a person to stay at the top indefinitely (Mukherji v. Miller, Doc. 24, pp. 10 to 11, 17). That reasoning is persuasive at most, but it fits the broader point in our piece on what sustained acclaim actually means: show that recognition continues, and do not leave a gap for the officer to fill.
- Read the denial for what standard the officer applied and whether it explains why your evidence fell short. Mukherji's alternative holding faulted a denial that did not articulate one.
- Ask your attorney whether a motion, an AAO appeal, a refiled petition or a federal lawsuit fits your facts. Our overview of options after an I-140 denial sets out the administrative routes.
- Treat a lawsuit as uncertain. The same court produced Mukherji and Agarwal, and the AAO has declined to follow Mukherji.
- Watch for an Agarwal appeal or any other appellate ruling, which would be the first binding word on the question.
Where to start
If you are deciding whether your record is strong enough for the final merits step, start with the free evaluation. Frank, our AI assistant, can then find real opportunities for the criteria you are missing. When you are ready, petitions are reviewed and filed by our partner law firm, Lai & Turner.
Sources
All checked October 21, 2026.
- Mukherji v. Miller, No. 4:24CV3170, Memorandum and Order, Doc. 24 (D. Neb.) (January 28, 2026). Facts of the denial, notice-and-comment and arbitrary-and-capricious holdings, order to approve.
- Mukherji v. Miller docket, No. 4:24-cv-03170 (D. Neb.), CourtListener (entries through June 10, 2026). Judgment, notice of appeal, Eighth Circuit No. 26-1578 dismissal and mandate.
- Agarwal v. Miller, No. 4:26CV3049, Memorandum and Order, Doc. 15 (D. Neb.) (September 25, 2026). Facts, holdings on substance, timeliness, interpretive rule and Encino, rejection of Mukherji, dismissal with prejudice.
- Agarwal v. Miller docket, No. 4:26-cv-03049 (D. Neb.), CourtListener (last updated October 2, 2026; checked October 21, 2026). Judgment entry and absence of a notice of appeal in that copy.
- USCIS Policy Manual, Volume 6, Part F, Chapter 2 (current as of October 2, 2026). Current two-step review and final merits text.
- 8 CFR 204.5, Petitions for employment-based immigrants, eCFR (current text). Definition of extraordinary ability and the initial evidence criteria.
- USCIS, The Administrative Appeals Office (AAO) (current page). Effect of non-precedent decisions.
- AAO Non-Precedent Decision, Form I-140 (Extraordinary Ability) (June 24, 2026). AAO's treatment of Mukherji.
- Federal Rule of Appellate Procedure 4, Legal Information Institute (current text). 60-day appeal period when a federal officer is a party.
- AILA, Think Immigration blog, AILA Doc. No. 26100600 (October 6, 2026). Secondary report that USCIS asked the Eighth Circuit to dismiss its appeal.
Frequently asked questions
Did Mukherji v. Miller abolish the EB-1A final merits determination?
No. Mukherji v. Miller was a single district court decision in Nebraska that set aside one petitioner's denial and ordered her petition approved. The government dropped its Eighth Circuit appeal in June 2026, so no appeals court ruled. USCIS has not withdrawn the step: as of October 21, 2026, the USCIS Policy Manual still tells officers to consider the petition in its entirety at a final merits stage.
What did Agarwal v. Miller decide?
On September 25, 2026, Chief Judge Brian C. Buescher of the District of Nebraska dismissed Prakhar Agarwal's lawsuit with prejudice. He held that USCIS's Kazarian two-step policy is consistent with the statute and regulation, that it is an interpretive rule that did not need notice and comment, and that the 2010 policy memo explained itself adequately. He expressly declined to follow Mukherji.
Can a federal court order USCIS to approve an EB-1A petition?
It happened in Mukherji v. Miller. On January 28, 2026, Judge Bataillon vacated the denial and remanded the petition to USCIS with instructions to approve it, reasoning that nothing else was left for the agency to do. The opposite outcome is also possible: in Agarwal v. Miller, the same court dismissed the petitioner's lawsuit with prejudice and left both denials in place.
If my EB-1A was denied at the final merits step, can I cite Mukherji?
You can raise it, but it binds no one outside that case. In a June 24, 2026 non-precedent decision, the AAO said it is not bound by district court decisions, noted the petition before it was denied outside Nebraska, and called the two-step process an interpretive rule. Whether a motion, an appeal, a refiled petition or a lawsuit fits your case is a question for your attorney.
Were Mukherji and Agarwal decided by the same court?
Both lawsuits were filed in the US District Court for the District of Nebraska and named Loren K. Miller, Director of the USCIS Nebraska Service Center, as a defendant. The two cases went to different judges of that court. Senior Judge Joseph F. Bataillon decided Mukherji, while Chief Judge Brian C. Buescher, who had upheld the Kazarian policy in two earlier cases, decided Agarwal.
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.
