Case Study: Mukherji v Miller - Federal Court Questions “Final Merits” Step in EB-1A Petition

Are changes coming in the EB-1A process? | Unsplash

By Amber Davis, Principal Attorney at Waypoint Immigration USA, and Kate Luther

In what may prove to be a pivotal decision, a U.S. District Court in Nebraska ruled that the second “Final Merits” step of the USCIS adjudication process had been “unlawfully adopted” and was both “arbitrary and capricious” in its application. 

This decision does not set a new precedent — District Courts have limited geographic jurisdiction — but it does blatantly question the agency’s recent haphazard use of the Final Merits process, while also providing a solid foundation for pushing back. That is always a good thing. 

A Little Background

The case — Mukherji v Miller, No. 4:24-CV-3170 — centers around Anahita Mukherji, an independent, award-winning journalist from India. Mukherji submitted evidence to satisfy five of the ten categories for an EB-1A visa, and USCIS agreed that those criteria had in fact, been met. Even so, the petition was denied in the Final Merits stage, contending that the cited accomplishments were “not recent enough” and did not therefore meet the high level of expertise required for an extraordinary ability (E11) classification. 

The plaintiff sued, stating the Final Merits Determination is not part of the governing statute or formal regulation and violates the Administrative Procedure Act (APA). The court agreed. 

Why This Case is Important

While the ruling does not eliminate or strike down the Final Merits step, it does shine a light on its “backdoor” adoption and the vast inconsistency with how it is used. 

The Final Merits stage was taken from the 2010 decision in Kazarian v. USCIS, and adopted through internal memos rather than the formal “notice and comment” process as required by the APA. The court noted this lack of adherence, stating that USCIS had “failed to follow its own rules.” 

The court also found that the agency had failed to acknowledge and reason through its policy changes, choosing instead to apply them “arbitrarily and capriciously” without providing adequate reasons for its decisions. “Agencies are free to change their existing policies…” the court wrote, “but the agency must at least ‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy’” (citations omitted).

Finally, this ruling took the extraordinary step of vacating the denial in its entirety and ordering USCIS to approve the petition because — as the court noted — “there is nothing else left for the Agency to do.” The courts can remand cases back to USCIS for further adjudication in line with their decisions, but in this case they insisted that the I-140 be approved outright.

Will Mukherji Impact Your EB-1A Petition?

While this case did not create any kind of legal model or precedence, it did force the agency to choose between complying with the order (which allows the ruling to stand) or establishing usable precedent if they lose an appeal in the Circuit Court. We aren’t sure yet if USCIS is going to appeal this decision, so updates will be forthcoming.

Not surprisingly, we are already seeing evidence of a shift in how the agency is processing EB-1A petitions, although not necessarily for the better. Rather than relying on a vague Final Merits review, some agents are conducting a more critical review of the criteria itself — that is, the completeness of your petition and the perceived weight or value of your accomplishments. 

This shift can make it harder to prove that you meet the criteria out of the gate, and that can be frustrating. It is especially frustrating if the agency takes its “arbitrary and capricious” standards and applies them in the context of the criteria instead of final merits.

The good news is, you do not have to do this alone.

Waypoint Immigration has helped hundreds of individuals and their families navigate the U.S. immigration process, and we are ready to go to work for you. Our firm works only with individual petitioners — not companies — and we have the experience and insight to help you find the best path to immigration, no matter where you are in the process. 

Contact our office today to schedule a consultation.