Nebraska Court Rejects USCIS “Final Merits” Test for EB‑1A Petitions

Key Point  

• A federal district court held that USCIS unlawfully adopted its two‑step “final merits determination” for EB‑1A petitions and found the framework arbitrary and capricious under the Administrative Procedure Act.

Summary of the Ruling 

The U.S. District Court for the District of Nebraska issued a decision in Anahita Mukherji v. Loren K. Miller, et al. (4:24‑cv‑03170), concluding that USCIS’s two‑step adjudication process for EB‑1A petitions—particularly the “final merits determination”—was not validly created, did not follow required rulemaking procedures, and is arbitrary and capricious. 

The court emphasized that it was reviewing only the legality of the two‑step framework, not the merits of the plaintiff’s EB‑1A petition. 

Key Details from the Decision 

Background 

• Plaintiff, an Indian national journalist, filed an EB‑1A I‑140 petition on March 8, 2024.
• USCIS found she met five of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) but denied the petition at the “final merits determination” stage.
• USCIS concluded she had not shown sustained national or international acclaim, particularly after 2015.

USCIS’s Findings in the Denial (as quoted in the record) 

USCIS stated, among other points, that: 

• The record did not establish sustained national or international acclaim. 
• Evidence of acclaim after 2015 was insufficient. 
• National acclaim appeared to have occurred prior to 2016. 
• The record did not show how work for the Times of India or Spaceship Media contributed to sustained acclaim after 2015. 
• The totality of the evidence did not show sustained national or international acclaim. 

Court’s Analysis of the Two‑Step Framework 

The court found: 

• The two‑step analysis was not created through notice‑and‑comment rulemaking. 
  • A 1995 proposed rule identified a similar two‑step approach as a substantive rule, but it was never finalized. 
  • USCIS later adopted the two‑step approach in 2010 through policy memoranda without APA procedures. 
• The agency failed to acknowledge or justify its policy change. 
  • USCIS did not recognize that it was discarding a single‑step approach used for nearly 20 years. 
  • The agency did not provide a reasoned explanation for adopting the new standard. 
• The change was legislative, not interpretive. 
  • Even the agency had previously classified the approach as substantive. 
  • Because no rulemaking occurred, the policy lacked legal force. 
• The adoption of the “final merits determination” was arbitrary and capricious. 
  • The agency did not articulate adequate reasons for the change. 
  • The court cited requirements from State Farm and Encino Motorcars regarding reasoned decision‑making. 
• Chevron deference does not apply. 
  • Citing Loper Bright, the court noted that courts must independently decide questions of law. 

Court’s Conclusion 

The court held that: 

• The two‑tier analysis “was not valid at its inception.” 
• USCIS failed to follow required procedures, failed to justify its policy change, and acted arbitrarily and capriciously. 

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