Mukherji v. Miller: What the Court Held About EB-1A Final Merits and What It Means for Petitioners

On January 28, 2026, the U.S. District Court for the District of Nebraska in Mukherji v. Miller vacated the denial of an EB-1A petition and ordered USCIS to approve it. The court concluded that the second step of review, the final merits determination, was introduced without the procedure the Administrative Procedure Act (APA) requires. The government appealed but withdrew the appeal on June 10, 2026. The decision raised a lot of hopes, yet as of October 27, 2026, USCIS and the Administrative Appeals Office (AAO) continue to apply the two-step review, and another judge in the same district reached the opposite conclusion in September 2026. Below is what the court held, what changed, and how to account for it when preparing a petition.

In short:

• Mukherji v. Miller, No. 4:24-cv-03170 (D. Neb.), Judge Joseph F. Bataillon, decided January 28, 2026: the EB-1A denial was vacated and USCIS was ordered to approve the petition.
• The court found that the final merits step was introduced through internal USCIS guidance without notice-and-comment and "was not valid at its inception."
• The government withdrew its Eighth Circuit appeal on June 10, 2026. The decision binds only the plaintiff's case; there is no precedent.
• The AAO does not follow Mukherji in its 2026 decisions. On September 25, 2026, a judge in the same district upheld the two-step review in Agarwal v. Miller.
• Practical takeaway: a petition still needs to be built to pass both steps.

The EB-1A two-step review: where final merits came from

For EB-1A, the petitioner must show sustained national or international acclaim. The regulation at 8 CFR 204.5(h)(3) offers two routes: a major internationally recognized award, or evidence under at least 3 of 10 criteria (awards, memberships, published material about the petitioner, judging, original contributions, authorship, exhibitions, leading role, high salary, commercial success).

In 2010, the Ninth Circuit in Kazarian v. USCIS indicated that officers should first check whether the criteria are met and then evaluate the evidence as a whole. In December 2010, USCIS adopted this approach in policy memorandum PM-602-0005.1 and later in the Policy Manual (Volume 6, Part F, Chapter 2). Since then, review has two steps:

The second step is where petitioners are most often denied, even when USCIS has accepted three, four, or five criteria. For current statistics, see EB-1A and NIW in 2026: approval rates and the Visa Bulletin.

Mukherji v. Miller: court, parties, and facts

The plaintiff filed an EB-1A I-140 in March 2024. USCIS agreed she met five of the ten criteria but denied the petition at the final merits step: in the officer's view, the record did not show sustained acclaim after 2015, and her recent work did not show she remained at the top of her field. She challenged the denial in federal court under the APA.

What the court held about final merits

The court reviewed not only the specific denial but also the legality of the two-step approach itself. As summarized by the law firms that analyzed the decision, the court's conclusions were as follows.

The step was adopted without notice-and-comment

USCIS introduced a mandatory second step through internal 2010 memoranda rather than a published rule with public comment. The court found this violated the APA and stated that "the two-tier analysis was not valid at its inception."

An unexplained change in position

Before 2010, meeting the criteria was generally treated as sufficient. In the court's view, the agency changed its approach without acknowledging or explaining the change, which made the denial arbitrary and capricious.

Loper Bright and the "recency" requirement

The court treated the legality of the final merits step as a question of law and, citing the Supreme Court's decision in Loper Bright (2024), did not defer to the agency's interpretation. The court also rejected the expectation that a petitioner keep accumulating new awards: the statute speaks of acclaim that has been demonstrated and sustained, not an open-ended duty to keep proving it with fresh achievements.

The remedy

The court did not send the case back for another review. It vacated the denial and ordered USCIS to approve the petition.

The government's appeal and its withdrawal

No appellate brief was filed and the Eighth Circuit issued no ruling on the merits. Consequences of the withdrawal:

• the district court judgment took effect for the plaintiff;
• no binding precedent was created for the Eighth Circuit, let alone nationwide;
• USCIS did not announce that it was abandoning the final merits step.

How USCIS and the AAO responded

The Policy Manual is unchanged. As of October 27, 2026, Volume 6, Part F, Chapter 2 of the Policy Manual still instructs officers to use a two-step analysis: the criteria first, then an evaluation of the petition in its entirety.

The AAO rejects the Mukherji argument. In June 2026, after the appeal was withdrawn, the AAO stated in a non-precedent EB-1A decision that the two-step review is an interpretive rule, not a legislative one, so notice-and-comment was not required. The AAO stressed that it follows published circuit court decisions, not a district court judgment for a different petitioner. In the same decision, the argument was also rejected because the petitioner raised it for the first time on appeal.

In August 2026 decisions, the AAO specifically noted that the Nebraska decision does not bind it in cases from other states (the published decisions involve Florida and New York). 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.

A court in the same district ruled the other way. On September 25, 2026, Chief Judge Brian C. Buescher of the District of Nebraska dismissed an EB-1A petitioner's case in Agarwal v. Miller (No. 4:26-cv-03049). The court found the two-step review consistent with the statute and regulation, treated the 2010 memorandum as an interpretive rule, relied on the Fifth Circuit's Amin v. Mayorkas (2022), and expressly declined to follow Mukherji, calling it "unsound and unconvincing."

What Mukherji means and does not mean for petitioners outside Nebraska

What it means:

• There is a court decision holding the final merits step unlawful. Attorneys can cite it as persuasive, not binding, authority.
• A "recency" requirement applied without a statutory basis can be challenged; the court accepted that argument.
• Federal courts are, in principle, willing to review not just an individual denial but the USCIS approach itself.

What it does not mean:

• The final merits step has not been abolished, in Nebraska or anywhere else. USCIS officers continue to apply it.
• Meeting three criteria does not guarantee approval.
• The AAO will not apply Mukherji in your case: from January through August 2026, the argument did not succeed before the AAO even once (per Immigration Copilot).
• A lawsuit does not guarantee a result: Agarwal v. Miller shows that even judges in the same district disagree.

How this affects EB-1A petition preparation

Until the rule changes, prepare the petition for both steps, as if the Nebraska decision did not exist. In practice:

1. A timeline of acclaim. Show that recognition was not a one-time event: spread the evidence across years, including the last 2–3 years. If there was a slowdown in the career, explain it.
2. Link each criterion to the overall conclusion. For each criterion, explain what it says about the petitioner's standing in the field, not just formal compliance.
3. Comparison with the field. Objective metrics (citations, circulation, rankings, salary data from official sources) so the officer can see who the petitioner is being compared to.
4. Independent corroboration. Support recommendation letters with publications, documents, and third-party data; the AAO regularly discounts generic letters from colleagues.
5. Legal arguments early. If the attorney decides to challenge the USCIS approach, it is better to raise it early: the AAO has already declined to consider it when it first appeared only on appeal.
6. A backup route. With a borderline profile, consider EB-2 NIW or O-1 as an interim step in parallel.

RFE or denial at the final merits stage: what to do

If you received a request for evidence, the logic is covered in our RFE guide. If a denial has already been issued, the options usually considered are:

Practitioners note that an AAO appeal is generally not required before suing: the regulation at 8 CFR 103.3(a)(2) says the petitioner "may" appeal. But choosing among these paths is a legal decision that should be made with a licensed immigration attorney, taking into account the deadlines, cost, and risks of the specific case.

How M&M can help

• EB-1A package preparation. M&M Document Preparation gathers and organizes evidence for both steps of review: exhibit index, timeline of acclaim, supporting documents. Legal strategy, including any Mukherji arguments, is set by a licensed partner attorney.
• RFE responses and refiling. We help gather missing evidence and check that a new package is consistent with the prior filing.
• Translation and notary. Certified translation of documents into English and notarization at our office in Brooklyn.
• Profile assessment. Start with a profile assessment or contact us.

Sources

• USCIS Policy Manual, Volume 6, Part F, Chapter 2 — Extraordinary Ability
• Fraser Immigration Law — After Mukherji: The Appeal, the Withdrawal, and the AAO's Answer (July 1, 2026)
• Immigration Copilot — EB-1A Final Merits Denial After Mukherji v. Miller: AAO in 2026
• Cyrus D. Mehta & Partners — USCIS Withdraws Appeal in Mukherji: What Changes and What Does Not (June 11, 2026)
• 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)
• EO Immigration — USCIS Withdraws Its Appeal in Mukherji v. Miller (July 6, 2026)
• Manifest Law — Nebraska Judge Orders USCIS to Approve EB-1A
• Envoy Global — Nebraska Court Rejects USCIS "Final Merits" Test for EB-1A Petitions (January 29, 2026)
• Mandamus Lawyers — EB-1A Denied at "Final Merits"?

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.