28 January 2026 — a federal court in Nebraska in Mukherji v. Miller declared the Final Merits Determination procedure unlawful.
USCIS introduced it via an internal 2010 memorandum, bypassing required public rulemaking. The court did not remand the case for reconsideration — it directly ordered USCIS to approve the petition.
Plaintiff: Anahita Mukherji, an Indian journalist
Meets 5 of the 10 criteria — almost double the minimum 
Denied only at the second stage: the officer deemed her achievements “too dated” 
The court rejected the very idea of a freshness requirement — it appears in neither the statute nor the regulations
Basis of the decision
Five grounds — each independently invalidates Final Merits:
Final Merits is a substantive rule, not an interpretive clarification A public notice-and-comment process should have been conducted — but it was not The agency quietly changed a twenty-year practice without explanation (from 1991 to 2010, meeting the criteria was sufficient for approval) After Loper Bright (2024), courts are not required to defer to the agency’s interpretation The “continuous presence at the top” standard is not found in the statute
What this means in practice
The decision currently applies only in Nebraska. USCIS continues to apply Final Merits in other districts, and officers still cite it in RFEs and NOIDs.
But the legal basis for the second-stage review is seriously weakened.
In responses to RFEs and NOIDs, Mukherji is now cited as a strong argument — especially when an officer requires sustained recognition beyond what the regulations provide
The argument that the “freshness” requirement was invented by USCIS is now supported by precedent
A federal lawsuit has become a real alternative to an AAO appeal — where no more than 7% of cases are approved
A federal court can directly order USCIS to approve a petition, rather than merely remanding the case for reconsideration
Important to consider
The government may file an appeal. Until that occurs, Mukherji remains the leading judicial argument against Final Merits.
USCIS could also attempt to legalize the procedure through formal notice-and-comment rulemaking — but that will take months. During that time, second-stage denials have a strong basis for challenge.
How to prepare petitions now
Until USCIS makes formal policy changes — prepare petitions to satisfy both stages.
But in the cover letter and in responses to RFEs rely directly on the text of 8 CFR § 204.5(h)(3), not on the two-step Kazarian construct.
Three lines of attack on Final Merits denials after January 2026
Procedural — violation of rulemaking procedures (APA) 
Substantive — the freshness requirement was invented by USCIS 
Standard of review — independent judicial judgment after Loper Bright
These arguments together are stronger than a typical AAO appeal on the same facts.
Bottom line
This is the first serious judicial challenge to Final Merits in 16 years.
What happens next depends on whether the government appeals and whether other districts follow Nebraska.
Attorneys working with EB-1A cases should closely monitor developments in the coming months.
Maxim Michaeli, Esq
www.michaeli.nyc