USCIS has withdrawn its appeal in Mukherji v. Miller, a Nebraska district court case that invalidated the agency’s use of the ‘final merits determination’ in EB-1A adjudications. The court had found the two-step process—requiring a second, subjective review after meeting regulatory criteria—was unlawfully introduced through internal memoranda without public notice-and-comment rulemaking under the Administrative Procedure Act. The withdrawal leaves the district court’s order intact and opens new litigation avenues for EB-1A practitioners challenging denials.
What changed
On June 10, 2026, USCIS officially withdrew its appeal to the Eighth Circuit in the landmark Mukherji v. Miller case. This leaves the district court’s ruling intact: the two-step Kazarian adjudication process (specifically the dreaded “Final Merits” step) was adopted in violation of the Administrative Procedure Act.
The ‘final merits determination’ emerged from a 2010 USCIS internal memo, adding a second layer of review after applicants met the required EB-1A criteria. In Mukherji, USCIS conceded the applicant met five of ten criteria but denied the case, citing outdated achievements and imposing a fabricated ‘recency’ requirement. The court rejected both the procedural validity of the two-step system and the substantive recency demand, ordering immediate approval of the petition.
The withdrawal leaves the lower court’s order to approve the petition intact for the applicant, without risking an adverse appellate precedent. By declining to appeal to the Eighth Circuit, USCIS avoided the risk of a circuit-level ruling that could have constrained its practices across multiple districts.
Why it matters
The Mukherji ruling does not immediately change nationwide EB-1A adjudication policy. USCIS is still likely to continue adjudicating EB-1A and EB-1B petitions using the familiar framework associated with the Ninth Circuit decision in Kazarian v. USCIS, including a broader evaluation of whether the evidence collectively demonstrates sustained acclaim and whether the beneficiary has risen to the top of the field. Petitioners should therefore continue preparing filings with the expectation that a holistic review will occur.
However, the appeal withdrawal creates significant litigation leverage for practitioners. 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.
It is surprising that the USCIS withdrew its appeal in the Eight Circuit, which is conservative, which means that after Loper Bright the final merits determination is vulnerable in any federal court. This signals to practitioners that courts nationwide—including in traditionally conservative circuits—may scrutinize the legal basis for final merits denials.
Way forward
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For denied EB-1A clients: Review the denial carefully to identify any “final merits” language or standards not expressly found in the statute or regulations. If USCIS acknowledged the applicant met three or more criteria yet denied at “final merits,” federal court litigation under the Administrative Procedure Act may now be viable.
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For pending EB-1A petitions: If you are 70% of the way to a strong profile, now is the time to sprint. You want your petition filed and adjudicated in this current “gray period” where USCIS’s subjective power is legally vulnerable.
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Build an APA litigation record: When responding to RFEs or NOIDs that invoke “final merits,” request clear citation to statutory or regulatory language. Document any shifting standards, unsupported assertions about “recency,” or conclusions untethered from the regulatory criteria.
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Consult litigation counsel early: If you have an EB-1A denial that rests on final merits reasoning applied after USCIS acknowledged meeting the regulatory criteria, an immigration attorney with federal court experience can evaluate whether the case presents a strong APA challenge.
Disclaimer
This article is for general informational purposes only and does not constitute legal advice. folaform.com is a technology platform, not a law firm. We cannot predict how USCIS will respond to Mukherji withdrawals, whether the agency will formalize a new final merits rule through proper rulemaking, or how courts outside the Eighth Circuit will rule on similar challenges. Immigration policy can change without notice. Always verify current guidance against official USCIS.gov sources and the primary court decision linked above, and consult a licensed immigration attorney about your specific facts and circumstances.