For more than a decade, extraordinary ability practice has lived in the shadow of the second-step framework of the “final merits determination”. Under this framework, USCIS may find that a petitioner meets the minimum regulatory criteria for extraordinary ability classification, but still deny the case because the “totality of the evidence” does not demonstrate sustained acclaim at the very top of one’s field.
That second step is commonly traced to Kazarian v. USCIS, but a recent federal court decision, Mukherji v. Miller, has now called the framework into serious question. Is the second step “out”? Not completely. But it may no longer be as untouchable as USCIS has treated it.
The Kazarian Framework
In Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), the Ninth Circuit affirmed USCIS’s denial of an EB-1A petition but criticized USCIS for adding evidentiary requirements not found in the regulation — such as requiring peer citations before counting scholarly articles for the scholarly-authorship criterion. The court explained that citations may matter to the overall extraordinary-ability analysis, but they are not required to satisfy the threshold criterion.
That distinction became the basis for USCIS’s modern two-step approach: first, determine whether the petitioner meets at least three regulatory criteria or has a major one-time award; second, assess whether the record as a whole shows sustained acclaim and top-of-field standing. Over time, however, USCIS used that second step to discount evidence it had already counted at step one.
What Changed in Mukherji?
In Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb. Jan. 28, 2026), the U.S. District Court vacated USCIS’s denial of an EB-1A petition on the merits, despite USCIS finding that the petition satisfied five regulatory criteria. The court’s key point was not merely that USCIS weighed the evidence poorly. It went deeper: the court found that USCIS’s adoption of the two-step/final-merits framework was not properly adopted through required Administrative Procedure Act procedures, including notice-and-comment rulemaking.
That is significant: instead of arguing only, “USCIS got the facts wrong,” petitioners may now argue, “USCIS used an unlawfully adopted adjudicatory framework.”
Is the Second Step Dead?
Not nationwide. Mukherji is a federal district court decision from Nebraska, and it does not automatically bind USCIS nationwide in every EB-1A case. USCIS’s Policy Manual still describes the two-step framework and instructs officers to conduct a “final merits determination” after deciding whether the evidence satisfies the regulatory criteria.
Reports indicate that USCIS initially appealed Mukherji but later dropped the appeal, leaving the district court ruling intact but without a binding appellate decision from the Eighth Circuit.
So, the final merits step is not gone everywhere, but it is vulnerable. USCIS may continue using it administratively, and is actively treating Mukherji as limited to that case, not as a nationwide change. But petitioners now have a strong argument, especially in federal court, that the agency cannot use an extra-regulatory, policy-created second step to deny a petition after conceding that the regulatory criteria have been met.
Why This Matters
For EB1A: Where USCIS says the petitioner satisfied at least three criteria but then concludes that the evidence does not prove sustained acclaim or top-of-field standing, Mukherji gives practitioners a direct response: If the regulation says a petitioner may demonstrate extraordinary ability through at least three criteria, USCIS should not be able to create a second, amorphous merits test without properly promulgating that rule.
That does not mean every three-criteria case must be approved. But it does mean USCIS should have to explain its reasoning in terms grounded in the statute and regulation — not simply invoke “totality” as a denial catch-all.
Before Mukherji, USCIS often counted evidence at step one, then discounted the same evidence at step two for reasons not stated in the regulation. Now, Mukherji strengthens the argument that USCIS cannot use final merits to quietly add new evidentiary requirements after the petitioner has already met the regulatory test. The key is not just meeting three criteria. The key is whether USCIS used the second step as an unauthorized additional hurdle.
For O-1: Mukherji is an EB-1A case, and the O-1 regulation has its own structure and standards. USCIS also evaluates O-1 evidence through regulatory criteria, and in practice officers often perform a similar overall assessment of whether the evidence demonstrates the required level of distinction or acclaim.
Mukherji does not automatically invalidate O-1 adjudication practices, but the reasoning may still be useful by analogy. If USCIS denies an O-1 after acknowledging that multiple criteria are met, and the denial relies on an unwritten “overall merits” test that adds requirements not found in the O-1 regulation, Mukherji may support the broader administrative-law argument: agencies cannot impose substantive evidentiary rules through policy guidance without proper legal authority.
For EB-2/NIW: The implications may also extend beyond EB-1A. USCIS’s Policy Manual uses similar two-step language for exceptional ability under EB-2, including an initial review of whether at least three regulatory criteria are met followed by a final merits determination.
That does not mean Mukherji automatically controls EB-2 exceptional ability or NIW cases. But it raises the same question: when a regulation lists specific criteria, how far can USCIS go in creating a second discretionary-feeling merits screen through policy guidance?
For NIW cases, the analysis is somewhat different because the Dhanasar framework is itself a precedential administrative decision, and the national interest waiver has a distinct discretionary structure. But for the “exceptional ability” component, Mukherji may still have persuasive value where USCIS uses a final merits concept to impose requirements beyond the text of the regulation.
The Big Takeaway
Mukherji does not mean that every EB-1A petitioner who meets three criteria must automatically win. But it does mean that USCIS’s familiar move — “you met the criteria, but we still deny under final merits” — is now legally more vulnerable than it was before.
Kazarian allowed USCIS to consider the whole record when deciding whether the statutory and regulatory standard is met. But Mukherji challenges whether USCIS lawfully transformed that idea into a freestanding second-stage denial framework.
The second step is not gone. But it has been wounded. For years, the final merits determination gave USCIS broad room to deny EB-1A petitions even after the petitioner cleared the regulatory criteria. Mukherji v. Miller pushes back on that practice and forces a harder question: if the regulation says what evidence is required, can USCIS deny based on a second test it never properly adopted?
