A federal judge in Nebraska has upheld U.S. Citizenship and Immigration Services (USCIS)’s use of the final merits determination in EB-1A extraordinary ability green card petitions. The ruling, issued in Agarwal v. Miller on September 25, 2026, supports the agency’s two-step evaluation process and creates a direct disagreement with an earlier decision from the same federal district court.
The decision is significant for professionals, researchers, entrepreneurs, academics, and other individuals seeking U.S. permanent residency based on extraordinary ability. It highlights the importance of presenting strong evidence that demonstrates not only eligibility under the regulatory criteria but also sustained national or international acclaim.
What Is the EB-1A Extraordinary Ability Visa?
The EB-1A visa is an employment-based immigrant category for individuals who demonstrate extraordinary ability in fields such as science, education, business, athletics, and the arts. Unlike many other employment-based immigration categories, EB-1A applicants can generally self-petition without a job offer or labor certification.
Under the applicable regulations, applicants must demonstrate extraordinary ability through either a major, internationally recognized award or evidence satisfying at least three of ten specified evidentiary criteria, subject to the overall eligibility requirements.
These criteria may include nationally or internationally recognized awards, membership in associations requiring outstanding achievements, published material about the applicant, judging the work of others, original contributions of major significance, scholarly publications, and leading or critical roles for distinguished organizations. EB-1A eligibility
Meeting the minimum number of criteria, however, does not automatically guarantee approval. USCIS also evaluates whether the evidence establishes that the applicant has sustained national or international acclaim and is among the small percentage who have risen to the top of their field.
Understanding the USCIS Final Merits Determination
The final merits determination is the second stage of USCIS’s two-step process for evaluating EB-1A petitions.
During the first step, an immigration officer determines whether the applicant has submitted evidence satisfying at least three of the ten regulatory criteria, unless the applicant qualifies through a major internationally recognized award.
During the second step, USCIS reviews the totality of the evidence to determine whether the applicant meets the extraordinary ability standard.
This assessment considers the overall strength, relevance, and significance of the documentation. An applicant may satisfy several individual criteria but still receive a denial if USCIS concludes that the complete record does not establish the required level of sustained acclaim.
Applicants have challenged this additional review, arguing that the agency introduced a requirement beyond the governing regulations and did not follow the formal rulemaking procedures required by the Administrative Procedure Act (APA).
Why Did the Federal Court Uphold the Review Process?
In Agarwal v. Miller, Chief Judge Brian C. Buescher of the U.S. District Court for the District of Nebraska rejected arguments that USCIS had unlawfully adopted its final merits determination framework.
The applicant challenged the legality of the two-step approach, including whether the agency had introduced a substantive rule without the required notice-and-comment process.
The court concluded that the final merits review was a permissible interpretation of the statutory requirement for sustained national or international acclaim. It also determined that USCIS’s 2010 policy memorandum establishing the framework was interpretive rather than a substantive rule requiring notice-and-comment rulemaking.
The ruling therefore supports USCIS’s authority to consider the evidence collectively after determining whether the applicant meets the initial regulatory criteria.
Importantly, the court’s decision does not mean that every EB-1A denial is legally correct. It addresses the legality of the review framework rather than establishing that USCIS may disregard the evidence submitted in an individual petition.
Conflict With an Earlier EB-1A Court Decision
The ruling is particularly notable because another judge in the same district reached the opposite conclusion in Mukherji v. Miller on January 28, 2026.
In that case, the court ruled against USCIS’s use of the final merits framework in the circumstances presented, vacated the denial, and directed the agency to approve the petition.
The contrasting decisions demonstrate that the legal debate surrounding EB-1A adjudications remains unresolved. The government subsequently withdrew its appeal of the Mukherji decision, leaving no binding Eighth Circuit appellate ruling resolving the disagreement.
Because federal district court decisions generally do not establish binding precedent for every other district judge, the Agarwal ruling does not automatically erase the earlier decision. Nor does either decision establish a nationwide rule requiring USCIS to abandon its existing framework.
For applicants, the practical takeaway is that the final merits determination remains an important consideration when preparing petitions and evaluating possible denials.
How EB-1A Applicants Can Strengthen Their Petitions
Applicants should prepare their evidence with both stages of USCIS review in mind.
1. Document achievements with credible evidence. Submit verifiable awards, publications, professional recognition, judging experience, and other relevant records.
2. Demonstrate the significance of contributions. Explain how original research, innovations, business achievements, or professional work have influenced the applicant’s field.
3. Establish sustained recognition. Provide evidence of achievements and recognition over time rather than relying exclusively on isolated accomplishments.
4. Support leading or critical roles. Include documentation of responsibilities, organizational reputation, measurable impact, and the importance of the applicant’s contributions.
5. Present a clear, consistent case. Organize supporting documents, explain how each item satisfies the relevant criterion, and show how the complete evidence establishes extraordinary ability.
Applicants should also consider obtaining qualified immigration legal advice when responding to a Request for Evidence (RFE), Notice of Intent to Deny (NOID), or final denial.
What This Ruling Means for Future EB-1A Petitions
The Agarwal v. Miller decision reinforces the continued importance of the USCIS final merits determination in EB-1A cases. Applicants should not assume that satisfying three or more evidentiary criteria alone will result in approval.
Although the conflicting district court decisions may influence future litigation and legal arguments, the broader legal question remains unsettled. Applicants should monitor further judicial developments and current USCIS guidance when planning their immigration strategies.
A carefully documented petition that addresses both the individual criteria and the overall extraordinary ability standard remains essential for presenting a strong EB-1A case.
Immigration Fleet Law Firm