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In Mukherji v. Miller, a federal judge in Nebraska ruled that USCIS has been applying an unlawful standard to EB-1A petitions since 2010.
The facts: A journalist met 5 of the 10 regulatory criteria. She only needed 3. USCIS denied her anyway, claiming her recognition was “not sustained” because her major awards came before 2016.
The court found three critical problems:
- The two-step “final merits” framework was never adopted through proper rulemaking. USCIS classified it as a substantive rule in 1995 but never completed the process. They just started using it after Kazarian.
- Nothing in the statute requires applicants to stay at the top of their field indefinitely. The court’s words: “Nor does the statute say anything about an individual being required to stay indefinitely at the top of their field.”
- USCIS failed to give specific, legal reasons for the denial, which their own Policy Manual requires.
The remedy? The court did not send this back for reconsideration. It ordered USCIS to approve the petition.
This is a district court decision and will likely be appealed. But in a post-Loper Bright world, courts are no longer rubber-stamping agency interpretations.
If you have been denied at final merits despite meeting the criteria, this case matters.
(Co-authored with Shradha N Mathur at OpenSphere, who works with SMA Lawyers on EB-1A strategy and petition development)
