Glossary
What is the final merits determination?
It is the second step of the EB-1A review. After counting your criteria, the officer asks if your whole record shows you are at the very top of your field.
Last checked October 2026 · Sources
- Which step
- Step 2 of 2
- Applies to
- EB-1A petitions
- Standard of proof
- Preponderance of the evidence
- Source
- USCIS Policy Manual, Vol. 6, Part F, Ch. 2
Quick answer
What is the final merits determination?
The final merits determination is step two of the EB-1A review. First the officer checks which criteria your evidence meets. Then the officer weighs all the evidence together. Does it show sustained national or international acclaim? Does it show you are among the small percentage at the very top of your field?
- Meeting 3 of the 10 criteria (or a major one-time award) gets you to this step. It does not win the case on its own.
- The officer can weigh evidence that fits no criterion.
- You must explain why your evidence matters, not just submit it.
- The standard is preponderance of the evidence: more likely than not.
In plain words
Step 1 vs step 2 at a glance
| Step 1: the criteria | Step 2: final merits | |
|---|---|---|
| The question | Which evidence meets the wording of each criterion? | Does the whole record show you are at the very top of your field? |
| What is looked at | Each piece of evidence, criterion by criterion | All the evidence together, including evidence that fits no criterion |
| Example | You reviewed papers for a journal, so the judging criterion is met | Was that judging a sign of top standing in your field? |
What can help
Evidence USCIS names as helpful at step 2
The Policy Manual gives examples. It is not a checklist, and most are measured against others in your field.
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Highly ranked journals
Articles in particularly highly ranked journals, shown for example by impact factor.
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High citations for your field
Such as a high h-index compared with others in the field.
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Leading institutions
Work or research experience with leading institutions.
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Unsolicited invitations
Invitations to speak at nationally or internationally recognized conferences.
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Competitive grants
Being named on a peer-reviewed, competitively funded US government grant for STEM research.
Why it matters for you
Why this step matters
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Meeting the criteria is not enough
USCIS says meeting the criteria in step one alone does not establish extraordinary ability.
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Officers have limits too
An officer may not deny just because one type of evidence is missing, if you submitted other qualifying evidence. A denial must give specific reasons.
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Write the argument
Practical guidance: say plainly how you compare with others in your field, with sources. A partner-firm attorney shapes this argument.
Where it comes from
The legal source
The two-step review comes from Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). USCIS sets it out in the USCIS Policy Manual, Vol. 6, Part F, Ch. 2. The top-of-the-field definition is in 8 CFR 204.5(h)(2).
Go deeper
Related terms and guides
The final merits determination, in depth
How to argue standing, not just recount the criteria.
Read more GlossaryKazarian two-step test
The court case behind the two steps.
Read more BlogPreponderance of the evidence
What “more likely than not” means in practice.
Read more BlogSustained acclaim
What “sustained” means for an EB-1A record.
Read moreFAQ
Questions people ask
Yes. USCIS says objectively meeting the criteria in the first step alone does not establish extraordinary ability. The second step still has to be met.
Yes. At this step officers consider any potentially relevant evidence in the record, even if it does not fit a criterion.
Preponderance of the evidence. That means showing your claim is more likely than not true, not proving it beyond doubt.
Not for that reason alone. The Policy Manual says an officer cannot deny because no published articles were submitted, if your other evidence meets the requirements.
No fixed number is published. USCIS compares your record with others in your field, so the same number can mean different things in different fields.
See how your record reads as a whole
The free evaluation checks your record against the EB-1A criteria, EB-2 NIW and O-1. A partner-firm attorney confirms eligibility before anything is filed. This is general information, not legal advice.
Sources · checked October 2026
- USCIS Policy Manual, Volume 6, Part F, Chapter 2: Extraordinary Ability
- Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), slip opinion
- 8 CFR 204.5, Legal Information Institute, Cornell Law School
This page is general information, not legal advice. Rules and fees change; a partner-firm attorney confirms what applies to you before anything is filed.
