EB-1A Final Merits Determination in 2026: How USCIS Evaluates Petitions Beyond the Three-Criteria Minimum

Meeting three EB-1A criteria is necessary, but it does not guarantee approval. USCIS applies a two-step analysis: first, a criteria check; then, a holistic “final merits determination” that evaluates whether the totality of evidence demonstrates sustained national or international acclaim. In 2026, a federal court ruling challenged the legal basis of this second step. This article explains how both steps work, what USCIS officers typically look for at the final merits stage, and how evidence is commonly organized to address both levels of review.

What Is the EB-1A Two-Step Analysis?

The EB-1A classification (Employment-Based First Preference, Extraordinary Ability) provides a path to permanent residency for individuals who can demonstrate extraordinary ability in the sciences, arts, education, business, or athletics. Unlike most employment-based categories, the EB-1A allows self-petition no employer sponsorship, job offer, or labor certification is required.

Since 2010, USCIS has applied a two-step evaluation framework:

Step One: Criteria Check

The officer determines whether the petitioner has submitted qualifying evidence for at least three of the ten regulatory criteria listed in 8 CFR §204.5(h)(3). Alternatively, a single major internationally recognized award (such as a Nobel Prize or Olympic medal) satisfies this step entirely. At Step One, the officer evaluates whether the evidence meets the plain language of the criteria, not whether the evidence is “strong enough.”

Step Two: Final Merits Determination

After confirming that at least three criteria are met, the officer conducts a holistic evaluation of the entire record. This is where many strong cases fail. On paper, everything looks correct, but the overall story doesn’t convince the officer. This step asks a broader question: Does the totality of evidence demonstrate that the petitioner has sustained national or international acclaim and is among the small percentage who have risen to the very top of the field?

At this stage, USCIS officers typically evaluate factors such as:

• Whether awards are genuinely nationally or internationally recognized vs. local or institutional
• Whether scholarly articles are cited and used by others in the field  vs. generating no measurable response
• Whether original contributions have demonstrable, real-world impact vs. remaining theoretical
• Whether a high salary reflects extraordinary ability vs. geographic or employer-specific factors
• Whether recommendation letters describe specific, verifiable achievements vs. offering general praise

The Ten Regulatory Criteria: What USCIS Evaluates at Each Step

The following table summarizes the ten criteria and how USCIS typically evaluates them differently at Step One (criteria check) versus Step Two (final merits):

The January 2026 Federal Court Ruling: Mukherji v. Miller

On January 28, 2026, the U.S. District Court for the District of Nebraska issued a ruling in Mukherji v. Miller (No. 4:24-CV-3170) that directly challenged the legal basis of the final merits determination.

The case involved a petitioner who met five of the ten regulatory criteria — well above the minimum three. Despite this, USCIS denied the petition at Step Two, stating that the record did not establish sustained national or international acclaim. The court found that USCIS’s adoption of the two-step Kazarian framework as a binding adjudication standard was procedurally invalid because it was never subjected to the notice-and-comment rulemaking process required by the Administrative Procedure Act (APA). The court ordered USCIS to approve the petition.

What This Ruling Means in Practice

• The ruling is not binding nationwide. It applies to the specific case in the District of Nebraska. USCIS officers across the country are still expected to follow the USCIS Policy Manual, which continues to apply the two-step framework.
• The ruling is persuasive authority. It can be cited in RFE responses, appeals to the Administrative Appeals Office (AAO), and federal court challenges if a petition is denied at the final merits stage.
• Petitions in 2026 are still evaluated under both steps. Until a higher court intervenes or USCIS revises its policy, the practical standard remains unchanged. However, the legal ground supporting the final merits determination has been weakened. 

Why Petitions Pass Step One but Fail at Final Merits

According to publicly available USCIS adjudication data, EB-1A denial rates have increased in recent fiscal years. A significant portion of denials occur at Step Two, where the officer acknowledges that the criteria are met but concludes that the overall record does not demonstrate sustained acclaim at the very top of the field.

Common patterns observed in Step Two denials include:

1. Evidence Without Context: The petition presents awards, publications, or citations without explaining their significance relative to field norms. For example, a publication in a peer-reviewed journal may satisfy Step One but at Step Two, the officer evaluates whether that journal is a top-tier outlet and whether the article has been cited or used by independent researchers. Without comparative context, the evidence may not convey distinction.

2. Nominal Criteria Compliance: The evidence technically meets the plain language of three criteria but does not reflect genuine top-tier standing. For instance, membership in an organization that accepts most applicants who pay a fee may satisfy Step One, but at Step Two, the officer may determine that the membership does not indicate extraordinary ability.

3. Lack of Independent Validation: The petition relies heavily on self-reported achievements or letters from direct colleagues rather than independent, third-party confirmation. Officers increasingly weigh evidence from sources outside the petitioner’s immediate professional circle independent citations, media coverage from outlets with no connection to the petitioner, or adoption of work by institutions that operate independently.

4. Recency Gap: The petition documents strong achievements from several years ago but provides limited evidence of continued activity, recognition, or impact in recent years. USCIS evaluates whether acclaim is “sustained”, meaning the petitioner has maintained a comparable level of recognition since the original accomplishments occurred. According to USCIS policy, there is no specific time frame, but officers do look for ongoing activity.

5. Disconnect Between Criteria and Overall Record: The petition presents three strong criteria but the supporting narrative does not tie them into a coherent picture of extraordinary ability. For example, strong citations on publications + a high salary + a leadership role at a startup may each satisfy individual criteria, but if the petition does not explain how these elements together demonstrate top-tier standing in a specific field, the final merits determination may not be favorable.

How Evidence Is Commonly Organized to Address Both Steps

The most effective EB-1A petitions based on publicly available approval data and USCIS policy guidance, are those where the evidence presented for the individual criteria simultaneously builds the case for the final merits determination. Rather than treating Step One and Step Two as separate exercises, the evidence package typically tells a single, consistent story.

Checklist: Evidence That Addresses Final Merits

☐  Comparative data for every claimed criterion: How does this award, salary, citation count, or membership compare to others in the same field? Context turns a fact into an indicator of distinction.

☐  Independent validation for each major claim: Third-party citations, independent media coverage, adoption by institutions with no financial connection to the petitioner. Officers tend to give more weight to what others say about the petitioner than what the petitioner says about themselves.

☐  Recency: At least some evidence of recent activity and recognition. A petition built entirely on achievements from 5+ years ago, with no evidence of continued activity, may raise questions about sustained acclaim.

☐  Consistent narrative across all documents: The petition brief, recommendation letters, and exhibit index all tell the same story. Inconsistencies in dates, job titles, or achievement descriptions can create friction at the final merits stage.

☐  Recommendation letters that reference documented exhibits: Letters are strongest when they cite specific, verifiable facts (e.g., “Dr. X’s algorithm, described in Exhibit 7, was adopted by three hospitals”) rather than offering general statements of admiration.

☐  Depth over breadth: In published case analyses, claiming 3–4 criteria with strong, well-documented evidence has been associated with higher approval rates than claiming 6–7 criteria with thin documentation across all of them.

Scenarios: How Final Merits Plays Out in Different Profiles

The following scenarios illustrate how the final merits determination typically applies to different professional profiles. Every case is unique, a licensed immigration attorney can advise on the specific approach for any individual situation.

When a Final Merits RFE or NOID Is Issued

USCIS may issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) at the final merits stage. According to USCIS data, EB-1A RFE rates have been estimated at 40–50% in recent fiscal years. A significant portion of these RFEs are issued not because the criteria were unmet, but because the officer was not satisfied that the overall record demonstrates sustained top-tier standing.

Common language in final merits RFEs and NOIDs includes:

• “The record does not establish that the petitioner has sustained national or international acclaim.”
• “The totality of the evidence does not sufficiently demonstrate that the petitioner is among the small percentage at the very top of the field.”
• “While the petitioner meets [X] criteria, the evidence does not rise to the level required under the final merits determination.”

A strong response to a final merits RFE typically does more than add documents. It repositions existing evidence by providing comparative context, independent validation, and a clearer connection between the individual criteria and the broader picture of extraordinary ability. 

Source: 8 CFR §103.2(b)(8) (RFE procedures); USCIS Form I-140 RAPD Summary, FY2025.

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