Nebraska Court Orders U.S. Approval of EB-1A in Mukherji V. Miller Final Merits Determination

(NEBRASKA) — In a rare move, a Nebraska district judge vacated a denial and ordered immediate approval of Anahita Mukherji’s EB-1A petition, challenging USCIS’s two-step Kazarian framework and its Final Merits review.

Section 1: Case at a glance: Mukherji v. Miller and the Nebraska ruling

Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska did more than send a case back to the agency. On January 28, 2026, the court ordered USCIS to approve an EB-1A petition filed by Anahita Mukherji, an Indian journalist, after vacating the prior denial in Mukherji v. Miller, No. 4:24-cv-03170 (D. Neb. Jan. 28, 2026).

That remedy—direct approval rather than remand—stands out in federal court review of immigration benefits. Federal court review here followed a familiar path for employment-based applicants: USCIS denied the petition, the petitioner challenged the denial under administrative law standards, and the court evaluated whether the agency’s reasoning matched the governing statute, regulations, and lawful agency procedures.

EB-1A (Extraordinary Ability) is designed for individuals who can show sustained national or international acclaim and entry to continue work in their area of ability. Denials often turn less on whether evidence exists and more on how USCIS weighs that evidence across the adjudication steps. That weighing dispute was central in the District of Nebraska.

Section 2: The Kazarian framework and the Final Merits issue

Kazarian v. USCIS is commonly cited for the two-step approach USCIS uses in EB-1A adjudications. Step 1 asks a threshold question: does the petitioner meet at least three of the ten listed regulatory criteria. Step 2 follows with a broader evaluation that USCIS often calls a Final Merits Determination.

That second stage asks whether the total record proves the person has the level of acclaim and standing the classification requires. USCIS’s practical position has often been that Step 1 is necessary but not sufficient: an applicant can clear the threshold and still lose at Step 2 because the agency views the second stage as permission to discount evidence, re-weigh probative value, and decide that the record does not show sustained acclaim at the required level.

Mukherji’s case sharpened the pressure point. USCIS conceded she met five of ten criteria, which exceeds the three-criteria minimum, but still denied at Step 2. The denial language framed the dispute in familiar terms for EB-1A litigants: the evidence supposedly failed to show sustained national or international acclaim, and parts of the acclaim were treated as too early in time to count as “sustained.”

For practitioners, the hard question is not whether Step 2 exists as a concept, but how it operates in real adjudications. When Step 2 becomes a second set of unstated requirements, the process can start to resemble a moving target. RFEs and NOIDs often preview that move by accepting certain exhibits for Step 1, then warning that the record still fails “in the aggregate” without explaining what additional, rule-based benchmark is being applied.

Section 3: Legal reasoning: unlawful adoption of Final Merits and APA implications

Senior U.S. District Judge Joseph F. Bataillon’s memorandum and order treated the dispute as an administrative law problem, not only an evidence-weighing disagreement. The Administrative Procedure Act (APA) draws a line between binding rules and informal internal guidance.

When an agency adopts a rule that effectively changes obligations or standards in a way that binds outcomes, the APA typically requires notice-and-comment rulemaking. USCIS argued it could apply a two-step approach that includes a Final Merits determination. The District of Nebraska rejected the way that Step 2 was adopted and applied in this context.

The court found the Step 2 Final Merits layer was unlawfully adopted, because USCIS implemented it through internal policy memoranda without the notice-and-comment rulemaking the APA requires. The ruling also characterized the approach as arbitrary and capricious and “not valid at its inception.”

Remedy mattered as much as theory. In many APA challenges to immigration benefit denials, the usual outcome is remand: the court vacates the denial and sends the matter back to USCIS for a new decision under the correct standard. Here, the court ordered immediate approval. That choice signals the judge’s view that once the legally permissible framework is applied, the agency had no room to deny based on the challenged Step 2 method, given USCIS’s concession that five of ten criteria were met.

Section 4: Immediate and broader significance for EB-1 categories

Applicants often think EB-1A fights are “about the evidence.” Many are, but Mukherji v. Miller reframes part of the debate as “about the rules used to judge the evidence.” That framing can matter across EB-1A and EB-1B, because adjudicators often apply similar two-step logic: threshold criteria followed by a holistic evaluation that can become outcome-determinative.

EB-1B (Outstanding Professors and Researchers) is structured differently from EB-1A, yet adjudications can raise parallel issues when USCIS reinterprets the meaning of regulatory terms through sub-regulatory guidance. O-1 classifications can face similar dynamics as well, because officers may apply a criteria count and then conduct a broad weighing exercise that can feel like a second gate.

• Accepting that criteria are met, then discounting the same evidence as “not persuasive” without a stable benchmark
• Demanding proof that looks like an extra criterion, such as a particular award tier, a publication’s circulation threshold, or a recency rule not found in regulation
• Treating “totality” language as an independent authority to deny even when the regulation’s listed standards are satisfied

Litigation behavior may shift too. When courts view internal rule changes skeptically, petitioners may press harder for the administrative record, internal guidance references, and a clear explanation of how the officer moved from Step 1 to Step 2. Agencies, in turn, may try to write denials with more explicit reasoning to survive APA review.

Government next steps are a live issue. USCIS may appeal to the Eighth Circuit, which could narrow, reverse, or affirm the District of Nebraska’s approach. Parallel cases in other districts could also emerge, and different circuits can reach different results on APA and agency-deference questions.

Section 5: Impact on individuals: pending, denied, and future filings

Case posture drives options. A pending EB-1A filing sits in a different world than a denied petition, and both differ from a new strategy built for a fresh filing.

Pending cases (including Nebraska Service Center matters) may see Step 2 concerns hinted in RFEs and NOIDs through phrases like “in the aggregate” and “sustained acclaim.” Responses usually work best when they do two things at once: (1) strengthen the evidentiary story and (2) preserve legal objections when the officer appears to treat Step 2 as a free-standing rule rather than an evaluation tied to the regulation.

Building a clean record matters, because the administrative record is typically what a court reviews later. Denied cases present a menu of imperfect choices: motions to reopen or reconsider, administrative appeals where available, refiling with a stronger record, or federal litigation.

Mukherji v. Miller may be cited as persuasive authority in arguing that an unlawfully adopted Final Merits Determination should not control the outcome, especially where USCIS already conceded that the petitioner met multiple criteria. Still, timing rules, exhaustion questions, and venue choices can change the risk profile, so consultation with qualified counsel is common in this stage.

Future filings should expect uncertainty. Even if a district court rejects Step 2 adoption, USCIS guidance can lag behind court decisions, and adjudication templates may not change immediately. Petitioners may also face venue sensitivity: where a case is filed and litigated can affect which precedent governs.

An appeal to the Eighth Circuit could become the next inflection point. Appellate review can tighten the legal test, reject it, or adopt it in a narrower form that still affects how denials are written.

Section 6: Official documents and next steps for readers

Court filings matter more than commentary. The memorandum and order in Mukherji v. Miller is the starting point for anyone trying to compare their own denial to the theory that prevailed in the District of Nebraska. Read the sections where the court explains why the Final Merits determination was unlawfully adopted, then compare that reasoning to the language in your RFE, NOID, or denial.

Secondary analysis can be helpful, but it is not authority. Treat it as interpretation, and verify the key quotations and holdings against the court’s text. Practical document work often comes down to matching phrases. Look for denial wording that mirrors Step 2 logic, such as conceding criteria and then denying for “totality” reasons without identifying a regulation-based basis.

References to internal policy memoranda may also matter, because the APA dispute turns on how binding standards were adopted. For official agency materials, monitoring USCIS resources is usually the cleanest approach. Start with the USCIS Policy Manual on uscis.gov, especially sections that describe EB-1A/EB-1B eligibility, evidentiary evaluation, and how adjudicators should treat criteria-based frameworks.

The APA’s notice-and-comment concepts can be reviewed in the statute itself, available via law.cornell.edu, as a baseline for what courts mean by procedural rulemaking duties. This analysis discusses a federal district court decision. It is not nationwide law and does not guarantee outcomes in other jurisdictions.

Legal standards evolve; readers should consult current statutes, regulations, and USCIS guidance.