Accurate as of October 27, 2026
Cyrus D. Mehta & Partners →Key facts
As of October 27, 2026, the dispute over the legality of the final merits step in EB-1A remains unresolved. The January 28, 2026 decision in Mukherji v. Miller applies only to the plaintiff: the government appealed but withdrew the appeal on June 10, 2026. The AAO does not follow the decision in 2026, the USCIS Policy Manual is unchanged, and on September 25, 2026, another judge of the same Nebraska court upheld the two-step review in Agarwal v. Miller. Below is the timeline and what follows from it.
In short:
- January 28, 2026: a Nebraska court vacated an EB-1A denial and ordered USCIS to approve the petition, finding that the final merits step was adopted in violation of the APA.
- Late March 2026: the government appealed to the Eighth Circuit. June 10, 2026: the appeal was withdrawn; there is no precedent.
- June–August 2026: the AAO rejects the Mukherji argument in non-precedent decisions.
- September 25, 2026: Agarwal v. Miller — same district, different judge, opposite conclusion.
- As of October 27, 2026: USCIS applies the two-step review; public sources show no appeal in Agarwal.
Timeline
| Date | Event |
|---|---|
| September 17, 2024 | Journalist Anahita Mukherji files an APA lawsuit in the District of Nebraska (No. 4:24-cv-03170) after an EB-1A denial at the final merits step despite five accepted criteria |
| January 28, 2026 | Judge Joseph F. Bataillon vacates the denial and orders USCIS to approve the petition |
| Late March 2026 | The government appeals to the Eighth Circuit (per Immigration Copilot, March 27, case No. 26-1578) |
| June 10, 2026 | The government moves to dismiss its own appeal; the Eighth Circuit grants the motion the same day |
| June 2026 | In a non-precedent decision, the AAO calls the two-step review an interpretive rule and does not follow Mukherji |
| August 2026 | In decisions involving Florida and New York petitioners, the AAO states that the Nebraska decision does not bind it |
| September 25, 2026 | Chief Judge Brian C. Buescher dismisses the case in Agarwal v. Miller (No. 4:26-cv-03049) and calls Mukherji "unsound and unconvincing" |
| October 27, 2026 | The Policy Manual (Volume 6, Part F, Chapter 2) still provides for a two-step review |
What the court decided in January
The court concluded that USCIS introduced the second step of review through internal 2010 memoranda issued after Kazarian v. USCIS, without notice-and-comment, and that the two-tier analysis "was not valid at its inception." The court also found the agency's unexplained change in position arbitrary and rejected the expectation that acclaim be continually confirmed with fresh awards. A detailed analysis is in our Mukherji v. Miller guide.
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Why the withdrawal did not change the rules
Withdrawing the appeal means the Eighth Circuit did not rule on the merits. The district court judgment became final only in the plaintiff's case and has no binding force for other cases or other courts. USCIS has not announced a policy change.
How the AAO responded
In June 2026, the AAO stated that the two-step review is an interpretive rule that does not require notice-and-comment, and that it follows appellate court decisions, not a district court judgment in someone else's case. In August 2026, the AAO specifically stressed that the Nebraska decision does not bind it in cases of petitioners from other states. According to a count by Immigration Copilot, from January through August 2026 Mukherji was mentioned in 43 of 370 published AAO EB-1A decisions, and the AAO followed it in none.
Agarwal v. Miller: a split within one court
On September 25, 2026, Chief Judge Brian C. Buescher of the District of Nebraska dismissed the case of an EB-1A petitioner who challenged the denials of two I-140 petitions. The court found the two-step review consistent with the statute and regulation, treated it as an interpretive rule, and relied on the Fifth Circuit's Amin v. Mayorkas (2022). The court expressly declined to follow Mukherji, finding it "unsound and unconvincing." The complaint was dismissed with prejudice.
The same federal district now has two opposite decisions, and no appellate court has yet resolved the conflict.
Status as of October 27, 2026
- USCIS and the AAO apply the final merits step in every case except the plaintiff's own.
- There is no binding appellate precedent either way in the Eighth Circuit. At the appellate level, the Fifth Circuit upheld the two-step analysis in Amin v. Mayorkas (2022).
- The public sources we checked show no appeal filed in Agarwal v. Miller.
- USCIS has not published Policy Manual changes or new EB-1A Policy Alerts related to Mukherji.
What this means for petitioners
If you are preparing an EB-1A, plan for the two-step review: the evidence must show not only three criteria but also acclaim sustained over time. If you received a denial at the final merits step, review the options (motion, AAO appeal, refiling, or a federal lawsuit) with a licensed attorney; for response deadlines and logic, see the RFE guide, and for current approval trends, the EB-1A and NIW 2026 overview. With a borderline profile, it makes sense to evaluate EB-2 NIW in parallel.
How M&M can help
M&M Document Preparation prepares EB-1A I-140 packages and RFE responses with both steps of review in mind, while a licensed partner attorney sets the legal strategy. Start with a profile assessment or contact us.
Sources
- Cyrus D. Mehta & Partners — Agarwal v. Miller Clashes with Mukherji v. Miller (October 18, 2026)
- Agarwal v. Miller, No. 4:26-cv-03049 (D. Neb. Sept. 25, 2026) — decision text (Midpage)
- Immigration Copilot — EB-1A Final Merits Denial After Mukherji v. Miller: AAO in 2026
- Fraser Immigration Law — After Mukherji: The Appeal, the Withdrawal, and the AAO's Answer (July 1, 2026)
- Cyrus D. Mehta & Partners — USCIS Withdraws Appeal in Mukherji: What Changes and What Does Not (June 11, 2026)
- Manifest Law — Nebraska Judge Orders USCIS to Approve EB-1A
- Immigration Fleet — Federal Judge Upholds USCIS EB-1A Final Merits Review (October 26, 2026)
- USCIS Policy Manual, Volume 6, Part F, Chapter 2 — Extraordinary Ability
This material is for informational purposes only and is not legal advice. M&M Document Preparation is not a law firm; a licensed partner attorney provides the legal assessment of a specific case. Information is current as of October 27, 2026.
FAQ
Yes, but only for the plaintiff: the appeal was withdrawn and the district court judgment in her case took effect. It is not binding for other petitioners.
