Are Changes Coming in the EB-1A Process?

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

Update: As of April of 2026, the decision is being appealed to the 8th Circuit Court.

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. However, it does blatantly question the agency’s recent haphazard use of the Final Merits process. It also provides 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. USCIS agreed that those criteria had, in fact, been met. Even so, the petition was denied in the Final Merits stage. They contended 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 that the Final Merits Determination is not part of the governing statute or formal regulation. It 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 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. Instead, they chose to apply them “arbitrarily and capriciously” without providing adequate reasons for their 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. The court noted that “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. However, 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 precedent, it did force the agency to choose between complying with the order 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. This means they are focusing on 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. 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.

Navigating the Process Together

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. We are ready to go to work for you. Our firm works only with individual petitioners — not companies. We have the experience and insight to help you find the best path to immigration, no matter where you are in the process.

If you’re feeling overwhelmed, remember that it’s okay to ask for help. You deserve support as you navigate this complex system.

Contact our office today to schedule a consultation.

Conclusion

In conclusion, the recent court ruling regarding the EB-1A process has opened up important discussions about how USCIS operates. While the future remains uncertain, it is crucial to stay informed and prepared. With the right guidance and support, you can successfully navigate the complexities of the U.S. immigration system and work towards achieving your personal and professional dreams.