Litigation Update June 10, 2026 · JBNP Law
USCIS has quietly walked away from its appeal in an EB-1A case it lost — leaving in place a court ruling that says the agency’s “final merits” step was never properly adopted. If you’re pursuing an extraordinary-ability green card, it’s a hopeful signal. But read the fine print before you celebrate.
In Mukherji v. Miller, a federal district court in Nebraska overturned the denial of an EB-1A petition, holding that USCIS’s “final merits determination” — the subjective second step the agency uses to deny petitions even after an applicant meets the regulatory criteria — was never properly adopted through notice-and-comment rulemaking under the Administrative Procedure Act. USCIS appealed to the Eighth Circuit, then, around June 10, 2026, withdrew that appeal — leaving the ruling standing in that case.
The petitioner, a journalist, met five of the ten EB-1A criteria — nearly double the three required. USCIS conceded that, then denied her anyway at the “final merits” stage, concluding she hadn’t shown she was among the top of her field. Applying the Supreme Court’s Loper Bright decision, which reins in agency power, the court questioned whether USCIS could impose a second evaluative step that isn’t grounded in the statute or its own regulations.
By dropping the appeal rather than fighting, USCIS avoided a higher-court ruling that could have struck down its “final merits” approach across an entire circuit — or wider. That it backed down in the Eighth Circuit, generally regarded as conservative, suggests the agency knows this framework is legally exposed after Loper Bright. In short, the tool most often used to deny strong EB-1A and EB-1B cases is now on shakier ground.
This was a single district-court decision, and the withdrawal makes it binding only in that one case — not nationwide. USCIS has not rescinded the “final merits” policy and is expected to keep using it, including denying petitions that clearly meet three or more criteria. Don’t assume the standard just got easier. DHS may even try to lock the step in through a formal regulation — though that, too, would be open to challenge.
If you’re weighing or filing an EB-1A — or an EB-1B or O-1 built on similar evidence — the takeaway is measured but real. Build the petition to win on a full, holistic review, and assume USCIS will still apply final merits. But if you’re denied on a vague “final merits” rationale despite clearly meeting the criteria, Mukherji hands you a meaningful new argument on appeal or in federal court. Book a consultation and we’ll assess where your case stands.
This post is general information, current as of when it was written — not legal advice, and no substitute for talking to an attorney about your own case. Mukherji v. Miller is a district-court decision that is not binding nationwide, and agency practice may change. Reading this doesn’t make us your lawyers. Please get advice on your specific situation before you act.