The End of the “Final Merits” Trap? What USCIS Dropping Its Appeal in Mukherji Means for Your EB-1A Visa

By Wendy R. Barlow, Esq. | Partner at Cohen, Tucker + Ades Specializing in Complex Immigration Matters

For over fifteen years, applicants seeking the EB-1A Extraordinary Ability green card have faced a frustrating, unpredictable obstacle. You could meticulously document your achievements, clearly check off three or more of the required regulatory criteria, and still receive a crushing denial based on a subjective, vague “final merits determination.”

But the legal landscape just shifted dramatically.

Following a landmark federal court victory in Mukherji v. Miller earlier this year, the U.S. Citizenship and Immigration Services (USCIS) has officially withdrawn its appeal before the Eighth Circuit Court of Appeals.

By dropping its appeal, USCIS has left intact a ruling that calls the entire EB-1A “two-step” denial machine unlawful. If you are an extraordinary researcher, entrepreneur, artist, journalist, or executive planning your immigration strategy, this development changes everything.

What Was the Mukherji Case About?

The dispute arose when Anahita Mukherji, an accomplished journalist, filed an EB-1A petition. USCIS openly conceded that she met five of the ten regulatory criteria—nearly double the required three.

Yet, the agency denied her visa anyway during its secondary “final merits determination.” Adjudicators claimed her major achievements were “too old” and invented a strict requirement that she prove she maintained an “indefinite top status” year after year.

The U.S. District Court for the District of Nebraska aggressively pushed back. The court found USCIS’s evaluation unlawful on two core grounds:

1. The “Final Merits” test was never legally created: The court ruled that USCIS silently rewrote the rules in 2010 via an internal memo, bypassing the mandatory public notice-and-comment process required by the Administrative Procedure Act (APA). The court stated bluntly: “The two-tier analysis was not valid at its inception.”

2. The “recency” mandate is fabricated: The EB-1A statute uses the past tense (“sustained national or international acclaim has been demonstrated”). There is absolutely no legal requirement to keep winning top awards every single calendar year to maintain your extraordinary status.

The judge didn’t just tell USCIS to try again; the court ordered the agency to approve her visa outright.

Why USCIS Withdrawing Its Appeal Is a Massive Win

When USCIS initially appealed the Mukherji decision to the Eighth Circuit, it was a clear attempt to defend its arbitrary vetting process. By withdrawing that appeal now, USCIS faces a reality where it cannot easily brush this case aside.

While a single district court ruling doesn’t instantly rewrite national policy overnight, USCIS’s retreat means Mukherji remains highly persuasive legal authority.

Immigration lawyers nationwide can now leverage this case to aggressively dismantle vague RFEs (Requests for Evidence), NOIDs (Notices of Intent to Deny), and unfair denials. It signals to USCIS that if they continue to issue boilerplate “final merits” denials when an applicant clearly ticks the regulatory boxes, they are highly vulnerable to being sued—and losing—in federal court.

Furthermore, this aligns perfectly with the Supreme Court’s decision to overturn Chevron deference via the Loper Bright ruling. Courts are no longer blindly rubber-stamping an agency’s self-invented interpretations of the law. They are holding USCIS strictly to the text written by Congress.

What Does This Mean for Your EB-1A Strategy Moving Forward?

If you are preparing an EB-1A petition or reconsidering your options after a past denial, keep these tactical shifts in mind:

• Vague Denials Are Now Major Liabilities for USCIS: If an officer admits you meet three criteria but denies your case using boilerplate phrases like “the evidence does not rise to the level of sustained acclaim,” without clear, objective metrics, that decision is legally fragile.

• Fluctuating Profiles Have Ground to Stand On: If your highest achievements happened a few years ago or occurred in a highly successful cluster, USCIS can no longer disqualify you simply because you don’t have breaking headlines from this past month.

• Litigation Is a Viable Path: Going to federal court is no longer a last-ditch effort. Under the Mukherji framework, a federal lawsuit is a powerful, proactive strategy to force the agency to follow its own written regulations.

How Cohen, Tucker + Ades Can Help You Navigate the New EB-1A Landscape

The EB-1A visa remains a prestigious and demanding standard, but the Mukherji withdrawal proves that agency discretion has its limits. Securing an approval isn’t just about compiling your credentials anymore; it’s about framing your petition to be completely “litigation-ready” from day one.

At Cohen, Tucker + Ades, our high-skilled business immigration team understands how to wield these cutting-edge legal developments to your advantage.

• Strategic Petition Building: We design your initial EB-1A filing to satisfy both the explicit regulatory criteria and a cohesive, bulletproof narrative of your sustained acclaim, leaving zero room for subjective “final merits” pushback.

• Aggressive RFE and NOID Responses: If USCIS attempts to apply extra-regulatory standards, invented recency rules, or vague thresholds to your pending case, we hold them accountable using Mukherji and APA principles.

• Federal Court Litigation: If you have received an arbitrary EB-1A denial despite meeting the core criteria, we can evaluate your case for a federal court challenge to push for a reversal.

Don’t let an overly restrictive, self-invented USCIS policy stall your life and career. Connect with the immigration attorneys at Cohen, Tucker + Ades today to schedule a consultation and map out a winning strategy for your extraordinary ability petition.

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