EB-1A Final Merits in Court: Mukherji v. Miller vs Agarwal v. Miller, and What It Means for Petitioners

One Nebraska judge ordered an EB-1A approval and another upheld the final-merits test. Why neither ruling reaches your petition, and how USCIS decides EB-1A cases today.

Part of our guide to EB-1A and EB-2 NIW.

Status as of 2026-11-01. USCIS's EB-1A final merits determination is in effect for every extraordinary-ability I-140. Mukherji v. Miller (D. Neb., 2026-01-28) ordered USCIS to approve one petitioner's case, and the government dropped its Eighth Circuit appeal on 2026-06-10. Agarwal v. Miller (D. Neb., 2026-09-25) upheld final-merits review. No appeals court has ruled in either case, and USCIS published no new EB-1 policy between 2026-10-01 and 2026-11-01. If a headline told you a court "struck down" final merits, the petitioner in Mukherji won that one case; the rule did not change for anyone else.

Did a court strike down the EB-1A final merits test?

No, not beyond one case. Mukherji v. Miller (D. Neb., 2026-01-28) ordered USCIS to approve one petitioner's EB-1A, and the government dropped its appeal. Agarwal v. Miller (D. Neb., 2026-09-25) upheld final-merits review in another case. Neither is appellate precedent, and as of 2026-11-01 USCIS still applies the two-step test to every EB-1A petition.

The two rulings came from the same federal trial court, eight months apart, with opposite results, and from two different judges of that court, according to Manifest Law's 2026-10-20 report. Cyrus D. Mehta & Partners describes them as clashing over the EB-1 final merits determination in its analysis of Agarwal and Mukherji.

The two Nebraska rulings at a glance (as of 2026-11)

What is the EB-1A final merits determination?

It is the second of two steps USCIS uses on every EB-1A petition, a framework the Policy Manual traces to Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). First the officer checks whether your evidence meets at least three of the ten criteria in 8 CFR 204.5(h)(3), or shows a one-time major award; then the officer weighs everything together to decide whether you are truly at the top of your field.

The standard is the regulation's own. 8 CFR 204.5(h)(2) requires that you be "one of that small percentage who have risen to the very top of the field of endeavor." The USCIS Policy Manual, Volume 6, Part F, Chapter 2, marked "Current as of October 27, 2026," tells officers to "Evaluate all the evidence together when considering the petition in its entirety for the final merits determination," and warns that "objectively meeting the regulatory criteria in the first step alone does not establish that the person in fact meets" the requirements. An officer who denies at that stage "must articulate the specific reasons," and those written reasons are what any later reviewer, including a judge, examines.

Our explainer on the Kazarian two-step and the final merits determination covers the test itself; this post covers the fight over it in court.

What did Mukherji v. Miller decide?

It ordered USCIS to approve the EB-1A I-140 of the petitioner who sued. The District of Nebraska ruled on 2026-01-28; the government appealed to the Eighth Circuit, then dropped the appeal, which was dismissed on 2026-06-10.

The reasoning, as Envoy Global summarized it on 2026-01-29: USCIS had found the petitioner met five of the ten criteria and denied her at final merits. The court held that the two-step framework, and the final merits step in particular, was adopted through 2010 policy memos without notice-and-comment rulemaking and was arbitrary and capricious under the Administrative Procedure Act (APA). That is a practitioner summary, not the opinion's text.

Our reading of the consequences: the judgment stands for that petitioner, but a dropped appeal leaves no Eighth Circuit opinion, so nothing in Mukherji became binding precedent. The Policy Manual still describes the two-step review, and its updates page shows no new EB-1 policy between 2026-10-01 and 2026-11-01.

What did Agarwal v. Miller decide?

It upheld final-merits review. The same District of Nebraska ruled on 2026-09-25, reaching the opposite result from Mukherji. As of 2026-11-01 there is no appellate ruling in Agarwal.

According to Manifest Law's report, the petitioner argued that the final merits test has no basis in the regulations and was adopted without formal rulemaking. The judge rejected both points: weighing the totality of the evidence fits the regulation's requirement of sustained acclaim, and the 2010 memo was an interpretive rule, which does not need notice and comment. The same report says the judge called Mukherji "unsound and unconvincing" and declined to follow it.

Why two rulings from one court can disagree

A district court decision is not binding precedent in other cases, even in the same district, and one district judge does not bind another. Binding rules come from the regional court of appeals (Nebraska sits in the Eighth Circuit) and the Supreme Court.

So "court split" needs care. A "circuit split" is a disagreement between federal courts of appeals, the kind that can lead to Supreme Court review; Mukherji and Agarwal are two trial-level rulings. Kazarian itself is a Ninth Circuit case that USCIS applies nationwide because the Policy Manual says to (our reading). Watch for an appeal in Agarwal or a new case reaching the Eighth Circuit; an attorney weighing either ruling will read the opinions themselves on PACER.

Mukherji v. Miller and EB-1A: does it apply to my case?

No, unless you were a party to it. The judgment ordered action on one petition. Your officer follows the Policy Manual, which still requires final merits, and Agarwal points the other way. An attorney can cite Mukherji as persuasive authority, for example to the Administrative Appeals Office (AAO) or a court, which may find it convincing but need not follow it.

Common misconception, then correction (as of 2026-11-01)

How USCIS adjudicates EB-1A petitions today

As of 2026-11-01, an EB-1A I-140 gets the same two-step review as before either ruling, under a stricter evidence policy.

• Evidence policy. PA-2026-05, in effect since 2026-08-05, lets officers deny without a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if required initial evidence is missing; 12 weeks is the RFE maximum and NOIDs are capped at 30 days. It covers every USCIS benefit request and is challenged in AAUP v. Mullin (D. Mass. 1:26-cv-14527), with no ruling, according to BAL. See our post on PA-2026-05 and EB-1A or NIW denials without an RFE.
• Data. In USCIS's FY2026 Q3 I-140 file, the EB-1A approval rate (approvals divided by approvals plus denials) was 47.5% in Q1, 41.8% in Q2 and 32.2% in Q3 (1,348 approvals and 2,832 denials, April to June 2026), with 28,874 pending. The drop predates PA-2026-05 and cannot show whether either ruling changed anything. Our breakdown of 2026 NIW and EB-1A approval rates explains the figures.
• Wait and fees. The USCIS processing times tool showed 32.5 months for EB-1A I-140s on 2026-11-01 (80% of cases finish within it). Premium processing (Form I-907) is $2,965 for an I-140 under G-1055, edition 10/26/26.

Can I sue USCIS over an EB-1A denial?

In general, yes: a petitioner can ask a federal district court to review a final USCIS denial under the APA, the usual route for an EB-1A denial in federal court and the statute Mukherji was decided under, according to Envoy's summary. Whether it makes sense for you is a question for a licensed immigration attorney who litigates; a suit is slow, costly and narrow.

At a high level:

• What the court reviews. Under 5 U.S.C. 706, "the court shall review the whole record or those parts of it cited by a party." That generally means the record USCIS had, not new evidence.
• The standard. The court sets aside action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The officer's written final-merits reasons are what get tested.
• The outcome. Courts often send a flawed decision back to the agency to decide again; an order to approve, as in Mukherji, is the stronger remedy (our reading of general administrative-law practice). The government can appeal a loss.
• What it does not do. A pending suit does not extend H-1B, OPT or STEM OPT status or move an I-94 end date, and court deadlines apply.

Your options after an EB-1A denial (as of 2026-11)

Deadlines come from the USCIS I-290B page; fees from G-1055. Our guide to an I-140 denial and your next steps walks through each route, and our comparison of an I-290B motion to reopen versus refiling covers that choice.

A worked example: a denial mailed 2026-11-16

Suppose you are on H-1B and USCIS mails you an EB-1A denial on Monday, 2026-11-16: three criteria met, final merits failed. For a mailed decision, the I-290B page says the date of service is "the date we mailed the decision, not the date you received it," so the 33-day window ends Saturday, 2026-12-19. Under PA-2026-15 (in effect since 2026-10-23), a day-counted paper deadline that ends on a weekend is met by the next business day, Monday 2026-12-21, but plan to file early instead. USCIS filing addresses changed on 2026-10-07, and old ones work only for filings postmarked on or before 2026-11-09, so this filing goes to the address on the USCIS filing-locations update page. Your H-1B status is separate, and the denial does not end it by itself.

What to do in the first week after a final-merits denial

1. Read the denial notice and mark which step it rests on: fewer than three criteria, or criteria met but denied at final merits.
2. Confirm the date of service (for a mailed decision, the mailing date) and the deadline on the USCIS I-290B page.
3. Check your I-94 on the CBP I-94 website and the end dates on your I-797 or EAD, so your status timeline is clear.
4. Contact your DSO if you are on F-1 OPT or STEM OPT and have SEVIS or OPT employment questions; visa-stamp and immigrant-intent questions go to your attorney.
5. Book a licensed immigration attorney with the denial, the full I-140 filing and any RFE or NOID, and ask them to compare an I-290B motion, an AAO appeal, a new I-140 and a federal suit, including how Mukherji and Agarwal bear on your facts.

If you are on OPT, STEM OPT or H-1B

USCIS's EB-1 page says "No offer of employment or labor certification is required" for extraordinary ability and "You may apply for yourself by filing a Form I-140." If you self-petitioned, a motion, appeal or suit is your call and your cost; if an employer filed for you, ask your attorney who may challenge the denial. On H-1B, under AC21 an I-140 filed 365 or more days earlier can support one-year extensions past six years until a final denial, so tell your attorney at once if your H-1B time rests on this petition. On F-1, which is not a dual-intent status, how an immigrant petition affects a future visa stamp is an attorney question. Our EB-1A self-petition guide covers building a record that holds up at both steps.

Common mistakes

• Filing a thinner petition because of Mukherji. Final merits still applies; build for both steps.
• Citing Mukherji as binding. It is persuasive at most, and Agarwal cuts the other way.
• Letting the I-290B window lapse while weighing a lawsuit. The 30 or 33 days run from the date of service; get timing advice early.
• Mailing to an old USCIS address. Old I-290B addresses work only for filings postmarked on or before 2026-11-09.
• Assuming a lawsuit protects your status. It does not.

Frequently asked questions

Did a court strike down the EB-1A final merits test?

No, not beyond one case. Mukherji v. Miller (D. Neb., January 28, 2026) ordered USCIS to approve one petitioner's EB-1A, and Agarwal v. Miller (D. Neb., September 25, 2026) upheld final-merits review in another case. Neither is appellate precedent, and as of November 1, 2026 USCIS still applies the two-step test to every EB-1A petition.

Does Mukherji v. Miller apply to my case?

Not unless you were a party to it. A district court judgment decides only the case in front of it, and the government dropped its Eighth Circuit appeal on June 10, 2026, so no appellate precedent came out of it. An attorney can cite it as persuasive authority, but your officer follows the USCIS Policy Manual.

What did Agarwal v. Miller decide?

Agarwal v. Miller, decided by the US District Court for the District of Nebraska on September 25, 2026, upheld USCIS's final-merits review in that case, the opposite result from Mukherji v. Miller in the same court. According to Manifest Law's report, the judge found the test consistent with the regulation's sustained-acclaim requirement and treated the 2010 USCIS memo behind it as an interpretive rule that needed no notice and comment. Neither ruling is appellate precedent.

Can I sue USCIS over an EB-1A denial?

In general, a petitioner can ask a federal district court to review a final USCIS denial under the Administrative Procedure Act, which tests whether the decision was arbitrary, capricious or otherwise not in accordance with law on the record USCIS had. A suit is slow and costly and does not extend your visa status, so discuss it with a licensed immigration attorney who litigates.

Does USCIS still apply final merits?

Yes. As of November 1, 2026, the USCIS Policy Manual (Volume 6, Part F, Chapter 2, current as of October 27, 2026) still requires a final merits determination after the criteria count, and USCIS published no new EB-1 policy between October 1 and November 1, 2026.

Sources

• USCIS, Policy Manual Vol. 6, Part F, Ch. 2 and Policy Manual updates
• USCIS, EB-1 first preference, I-290B, G-1055
• USCIS, PA-2026-05 and immigration and citizenship data
• 8 CFR 204.5 and 5 U.S.C. 706 (Cornell LII)
• Cyrus D. Mehta & Partners on Agarwal and Mukherji, Envoy Global on Mukherji and Manifest Law on Agarwal
• BAL on AAUP v. Mullin and the USCIS filing-locations update

How we checked this: on 2026-11-01 and 2026-11-02 we read the Policy Manual EB-1 chapter and updates page, 8 CFR 204.5, 5 U.S.C. 706, the USCIS I-290B, EB-1 and filing-locations pages, the G-1055 fee schedule (edition 10/26/26) and the FY2026 Q3 I-140 data file. Court dates and results come from our dated facts brief and the Cyrus D. Mehta & Partners analysis it cites; the summaries of each court's reasoning come from the Envoy Global and Manifest Law reports, not from the opinions, which we did not read.

This is general information, not legal or tax advice; your own notices and a licensed immigration attorney (or your DSO for F-1, OPT and SEVIS questions) govern your case.

An EB-1A dispute can run for years, and your job search has to keep moving meanwhile. If you want help finding US roles with employers that sponsor visas, talk to F1Jobs.