EB-1A Final Merits Determination: Why Meeting 3 Criteria Is Still Not Enough (2026)

Last reviewed: October 28, 2026 · Sources: USCIS Policy Manual, 8 CFR 204.5(h), USCIS I-140 data and the federal court opinions cited below

You can meet three of the ten EB-1A criteria, have USCIS agree that you meet them, and still be denied.

The reason is the "final merits determination," the second step of USCIS review. This year, two federal judges in Nebraska gave opposite answers on whether that step is even lawful. In January 2026, Mukherji v. Miller called it unlawful and ordered USCIS to approve the petition. On 25 September 2026, Agarwal v. Miller upheld it and dismissed the applicant's challenge.

This article explains what the final merits step is, what the two rulings mean for you, and how to prepare evidence that holds up at both steps of review.

In this article

1. What the EB-1A final merits step is
2. What the courts decided: Mukherji v. Miller and Agarwal v. Miller
3. Why it matters more in 2026: the EB-1A approval rate
4. Where EB-1A petitions fall short, and how to fix it
5. Already received an RFE, NOID or denial?
6. Where to start: an EB-1A checklist
7. Common questions

This article is written for professionals planning an EB-1A self-petition, including software engineers, researchers, founders, doctors and artists; for applicants who have received an RFE, NOID or denial that questions their overall acclaim; and for H-1B workers born in India, for whom EB-1 moves years ahead of EB-2.

What the EB-1A final merits step is

EB-1A (often written EB1A) is the green card category for people with extraordinary ability. You can petition for yourself, with no employer, no job offer and no PERM labor certification.

The regulation at 8 CFR 204.5(h)(3) lists ten types of evidence. You must meet at least three of them, or show a one-time major internationally recognized award such as a Nobel Prize.

Since 2010, USCIS has reviewed EB-1A petitions in two steps, often called the Kazarian two-step test. It comes from the Ninth Circuit's decision in Kazarian v. USCIS and a USCIS policy memo issued later that year.

1. Step one: the criteria. Does your evidence meet at least three of the ten criteria?
2. Step two: the final merits determination. Looking at all the evidence together, does it show sustained national or international acclaim, and that you are among the small percentage who have risen to the very top of your field?

Put simply, step one asks whether your evidence fits the categories. Step two asks whether it shows you are at the top of your field and have stayed there.

The term "final merits" does not appear in the immigration statute or the regulation. That is why applicants who meet three or more criteria and are still denied have challenged it in court.

What the courts decided: Mukherji v. Miller and Agarwal v. Miller

Both cases were heard in the U.S. District Court for the District of Nebraska, which is where many challenges to EB-1A decisions from the USCIS Nebraska Service Center are filed. The two judges reached opposite conclusions.

In Mukherji, USCIS agreed the applicant met five criteria but said she had not shown sustained acclaim, especially after 2015. The court held that USCIS had created the two-step test through policy memos instead of formal rulemaking, and had not explained why it changed its earlier approach. It also rejected the idea that an applicant must keep receiving new awards or media coverage to stay eligible.

In Agarwal, Chief Judge Brian C. Buescher followed the Fifth Circuit's 2022 decision in Amin v. Mayorkas, which also upheld the two-step review. In his view, the regulation's phrase "at least three" means three criteria are a starting point, not the finish line. He called Mukherji "unsound and unconvincing." The court ruled on whether the two-step review is lawful, not on the strength of Mr. Agarwal's achievements.

That would matter less if most petitions were being approved. They are not.

Why it matters more in 2026: the EB-1A approval rate

EB-1A approvals have dropped sharply over the past two years. USCIS's own data shows the approval rate falling quarter after quarter:

Approval rate = approvals divided by approvals plus denials in the quarter, for Alien of Extraordinary Ability (E11) petitions. Source: USCIS, Form I-140 by Fiscal Year, Quarter and Case Status, FY2025 and FY2026 Q3 reports. In FY2026 Q3, USCIS approved 1,348 EB-1A petitions and denied 2,832.

At the same time, you may not get a second chance to fix a weak filing. USCIS may deny a petition without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), depending on the circumstances. The USCIS Policy Manual, updated by a policy alert on 5 August 2026, confirms this discretion, and states that the maximum time to respond to an RFE is 12 weeks with no extra time granted. (More in our guide to the August 2026 evidence standard.)

For Indian nationals, the stakes are higher still, because EB-1 moves years ahead of EB-2 in the Visa Bulletin (see our EB-1A and Visa Bulletin guide for India). A well-prepared EB-1A remains worth the effort.

The practical conclusion is simple: submit a complete, well-supported record at filing. The next section shows where petitions most often fall short.

Where EB-1A petitions fall short, and how to fix it

The same weaknesses come up again and again. Some stop a criterion from being accepted at step one. Others let a criterion pass but carry little weight at final merits. Each one below is paired with what usually fixes it.

1. Claims without proof

The weakness: letters from colleagues and managers praise the applicant, but the petition does not include the documents behind the praise.

The fix: for every criterion you claim, include the document that proves it: the award certificate and the rules for winning it, the article and the publication's circulation, the review invitation and the reviewed work, citation records from a recognized database. Your own description of an achievement is not evidence of it. (Often fails at step one.)

2. Awards, memberships and roles that are not shown to be selective

The weakness: an association anyone can join for a fee, an award given to a large share of a company's staff, a "critical role" at an organization whose standing is never shown, or articles about the employer that barely mention the applicant.

The fix: show how selective each award or membership is, why the organization is distinguished in its field, and that published material is about you and your work. (Often fails at step one.)

3. Activity without level

The weakness: peer reviews for low-ranked journals or a single hackathon panel can meet the judging criterion on paper, but say little about standing at the top of the field.

The fix: show how your work compares with others: how your citations compare with others in your field, how your salary compares with published wage data for your field and location, whether you review for leading journals at an editor's invitation. For software engineers and other tech professionals, this often means showing scale and adoption: patents that are licensed or cited, open-source projects used by major companies, systems serving millions of users, or technical standards you helped write. Where a criterion does not fit your field, the regulation allows comparable evidence, as long as you explain why the standard criterion does not readily apply. (Matters most at final merits.)

4. Acclaim that does not look sustained

The weakness: most of the recognition is from years ago, with little showing that it has continued. USCIS gave a reason of this kind in Mukherji.

The fix: show that your national or international acclaim has been maintained, with evidence across your career that you are still recognized at a high level in the same field. (Matters most at final merits.)

5. Significance that the officer cannot judge

The weakness: officers are not specialists in your field. Without explanation, they may not see why a contribution matters.

The fix: an EB-1A expert opinion letter from a qualified independent expert, someone with no personal or professional tie to you, can explain why your contribution matters and how it compares with others in the field. Such letters work best when each statement points to a specific document in the record. For the difference between recommendation letters and independent expert letters, see our guide to recommendation and expert opinion letters. (Matters most at final merits.)

6. A record that is hard to follow

The weakness: hundreds of pages with no clear order, foreign degrees the officer cannot place, and letters that do not point to the evidence.

The fix: number every exhibit, list them in an index, and cite exhibits by number in the cover letter and expert letters. EB-1A has no degree requirement, but if your degrees are from outside the United States and your petition relies on your education, a credential evaluation tells the officer what they are equivalent to in U.S. terms.

If you have already filed and USCIS has raised these concerns, the same fixes apply, but the timing changes.

Already received an RFE, NOID or denial?

If you received an RFE or NOID on final merits

An RFE or NOID that questions your "sustained acclaim" or whether you are at "the very top of the field" is a final merits warning. The officer is not yet convinced by the record as a whole, even if some criteria are accepted.

Answer it point by point. For each concern, add new documents that show level and comparison, not more of the same. Independent EB-1A expert opinion letters that address the officer's exact concerns can help. Follow the response deadline stated on the notice; USCIS does not grant extra time to respond. Our RFE response support can help prepare the documents your attorney needs.

If your EB-1A was denied at final merits

Read the denial carefully. Note which criteria USCIS accepted and the exact reasons it gave at final merits. Those reasons are a list of what your next filing has to prove. The main options are:

• Refile a new EB-1A petition with a stronger record that answers each reason in the denial.
• A motion to reopen or reconsider, filed with USCIS on Form I-290B, usually within 30 days of the decision.
• An appeal to the Administrative Appeals Office (AAO), also on Form I-290B and usually within 30 days.
• A federal court challenge, like the ones in Mukherji and Agarwal. The court split shows this route can go either way.

Which option fits your case is a legal decision to make with an immigration attorney.

Whether you are filing for the first time or refiling, the starting point is the same.

Where to start: an EB-1A checklist

The basics every petition needs:

• I can name at least three criteria (or a one-time major international award) and the document that proves each one.
• I can show how my achievements compare with others in my field, not just that they happened.
• My evidence shows that I have maintained national or international acclaim.
• Every claim in my letters points to a document in the record.

Optional support that can help, where relevant:

• A letter from an independent expert with no tie to you, to explain the significance of your work to a non-specialist officer.
• A credential evaluation, if your degrees are from outside the United States and your petition relies on your education.
• A numbered exhibit index, which makes a long record easier to review.

If some of the basics are missing, address them before filing rather than relying on an RFE. And speak to an immigration attorney about eligibility, filing strategy and anything involving a past denial.