Attorney Maksim Mikhaelli raised a great topic on our forum about the Mukherji v. Miller case. The one where the federal court in Nebraska on January 28, 2026 found the Final Merits Determination unlawful.
I want to add here what Maksim didn’t include in his post: what happened after January 28. Because between “the court found the procedure unlawful” and “petitions are now being approved” there are several layers in reality, and they deserve their own discussion.
I’ve been following this case from day one. When it surfaced at the end of January, it was immediately clear: this isn’t a one-off win in a single district but potentially systemic. Since then I’ve tracked the appeal, USCIS’s reaction, the AAO’s reaction, Brian Green’s activity (the attorney who won the case), and parallel suits in other districts.
What also pushed me to write this post: Mukherji became public at the end of January, and since then—more than three months now—members of our community have been contacting me regularly. The most common question is:
“Do we actually have a chance now? I was denied specifically on Final Merits, and Mukherji seems to open the federal-court route for me. Should I pursue it or is it a waste of money?”
It’s a fair question. A real chance has indeed appeared, no doubt. But the answer to “should I go” isn’t as straightforward as one would like. So I decided to collect everything I know today into one post. Below is exactly that: the process, the appeal, what USCIS is saying, what Green (the attorney who ran the case) proposes, and where the line lies between “a real shot” and “selling hope.”
Contents
- Court ordered. USCIS didn’t comply
- Appeal to the Eighth Circuit
- Five reasons the court tore down Final Merits
- Reason one. It’s not guidance, it’s a rule
- Reason two. No one was asked
- Reason three. The practice was silently flipped
- Reason four. Courts used to defer to USCIS. Not anymore
- Reason five. There’s no legal requirement to be forever at the top
- The attorney who won this
- Why the government appealed at all
- Critical date: May 11, 2026
- What USCIS is doing right now
- What Mukherji actually proved and who she is
- Why this still matters for practice
- Two roads after denial: AAO or straight to court
- What’s important to know about a federal suit
- What to watch in the next month
Court ordered. USCIS didn’t comply
Many people think: the court ordered approval. So they approved? Does Mukherji already have a green card in her pocket?
No.
USCIS hasn’t approved the petition. The court said “approve” and signed the order. The agency shrugged and went to the next higher court to complain.
Main paradox of the case
Winning at the district level and actually getting a green card are, for now, two very different stories. Mukherji’s green card is hanging in the air pending the appeal.
Appeal to the Eighth Circuit
A quick note for those new to this American immigration story and still getting used to the terms. USCIS is part of the U.S. government, specifically a component of the Department of Homeland Security. When a case goes to court, USCIS doesn’t defend itself — the Department of Justice does that. So when I write “the government appealed,” in practice it’s the same party: the state versus Mukherji.
On March 27, 2026 the government filed an appeal. Up to the next level. That’s the appellate court that covers seven states: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. It’s called the Eighth Circuit.
At the district level things are closed. No one is re-litigating there. Formally the decision is not stayed. But USCIS is in no hurry to issue Mukherji’s green card. It’s hanging in the air, waiting for the appeal.
That’s the most uncomfortable moment in the whole story.
Five reasons the court tore down Final Merits
The most interesting thing in Judge Bataillon’s decision is this. He didn’t just overturn a single denial. He methodically dismantled the Final Merits procedure on five separate legal grounds. Any one of them would have been enough. Here there were five. This isn’t a close call — it’s a thorough takedown.
Detailed analyses at Murthy Law Firm and in Cyrus Mehta’s blog. In plain terms the five reasons are as follows.
Reason one. It’s not guidance, it’s a rule
In the U.S. agencies have two types of documents. Some merely guide officers on how to apply the law that already exists — you can do that by internal memo or an instructional note. Others effectively add a new requirement for citizens that didn’t exist before. That’s a rule. You can’t adopt a rule by memo; there’s a separate procedure for that.
What did Final Merits do? It added a new requirement. Previously approval could be granted after clearing three criteria out of ten. After Final Merits, you had to pass a second stage as well. That’s not “here’s a hint on how to read the law.” That’s “here’s a new hurdle.”
Essence of the violation
Final Merits, in effect, is a rule, not guidance. And you can’t impose a rule via internal memo. The train went off the rails from the start.
Reason two. No one was asked
There’s a specific law (5 U.S.C. § 553) that describes how an agency must adopt new rules. The algorithm is simple and rather humiliating for the agency.
Publish a proposed rule
In the Federal Register — that daily official government publication.
Allow several months for comments
From citizens, lawyers, businesses, anyone.
Read the comments and respond
Publicly explain why you are right. Only then put the rule into force.
Long, tedious, sobering — it prevents the agency from making mistakes on its own. That’s why the procedure exists.
With Final Merits none of that happened. It started as an internal Yates 2010 memo (PM-602-0005, “Evaluation of Evidence Submitted with Certain Form I-140 Petitions”), then in December 2020 under the Trump administration it was turned into nationwide policy via the Policy Manual. No one was asked then either. They decided, adopted, and started denying.
Reason three. The practice was silently flipped
From 1991 to 2010 USCIS approved EB-1A fairly simply: hit three out of ten criteria, get an approval. That’s how it worked for almost twenty years; a whole generation of petitioners lived under that rule.
In 2010 USCIS quietly, on tiptoe, added a second stage — and never said a word. They just started denying.
The Supreme Court intervened. In Encino Motorcars v. Navarro it told agencies plainly: you can change policy, no one forbids that. But you must do two things.
- Publicly acknowledge that you are changing policy.
- Explain why the new policy is better.
Without that any change of course is arbitrary.
USCIS did neither. It silently worked that new course for sixteen years until Judge Bataillon opened the window and said: guys, you can’t do that.
Reason four. Courts used to defer to USCIS. Not anymore
This is perhaps the most interesting piece of the story, although it sounds like pure legal abstraction. In reality it’s about power.
Until 2024 U.S. law operated under a rule lawyers called “Chevron deference” (from the 1984 case where it originated). In plain terms it meant: if a statute is ambiguous and the agency adopts one reasonable interpretation, the court must defer to that interpretation. Don’t challenge, don’t dig in, don’t doubt. Bow to the agency and move on.
For forty years this gave agencies, including USCIS, an effective blank check: “This is how we read the law, period.” The courts nodded and didn’t interfere.
What this means in practice: the era of automatic deference is over. Now the judge reads the statute for themselves, decides what it says, and isn’t obliged to accept the agency’s interpretation in advance. If the USCIS reading seems strained, the judge can simply say “no.”
Mukherji is the first EB-1A decision where the judge used that directly. Without bowing, he looked at Final Merits with his own eyes and found the procedure unlawful. What used to get by no longer does.
Reason five. There’s no legal requirement to be forever at the top
This one is probably the most practical for litigation.
The main officer’s complaint against Mukherji was: okay, you were at the top of your field in the 2000s and until 2015 you were recognized. But what about after 2015? There are fewer awards, fewer articles, things quieted down. That means your recognition stopped. Thank you, goodbye.
Familiar story, right? USCIS has used this argument for years: “recognition not sustained, continuous activity not shown.”
Judge Bataillon answered this almost literally. Remember this quote — it’s golden for any RFE response:
Judge Joseph F. Bataillon, D. Nebraska, January 28, 2026
“The plaintiff was at the top of her field. No one disputes that. The agency built its denial on whether she continued to consistently receive awards or maintain the same level of productivity. The Court finds nothing in the statute that supports such a requirement.”
This quote functions as a shield-card in responses to RFEs demanding “freshness” of recognition.
Translation: the “freshness of recognition” requirement that USCIS has been wielding for years was invented by USCIS. It’s not in the statute. It’s not in the regulations. They made it up because it’s convenient for denials.
Practical tip from Wildes & Weinberg
The law firm Wildes & Weinberg explicitly recommends using this quote in any RFE reply where the officer demands “freshness” of recognition. The quote works as a shield: the officer must either ignore a federal court decision or withdraw the claim.
The attorney who won this
A separate story that I personally found interesting — and I have first-hand details because several acquaintances wrote to me after contacting this attorney.
The Mukherji case was won by Brian Green, a solo practitioner from Denver (Law Office of Brian Green). Here’s an important detail to chew on.
Green himself isn’t a newcomer. By his own numbers, since 2019 he’s filed over a thousand suits against USCIS, mostly mandamus and APA claims. So he’s a workhorse who for years produced cases against the immigration service. But he’s a workhorse, not a star. Before January 28, 2026 he wasn’t widely quoted in public immigration circles, journalists didn’t swarm him, and he wasn’t a regular on big AILA panels.
And interestingly, after Mukherji he didn’t loudly light up elsewhere either. No second precedent, no new marquee case, no “here’s my new decision” circular. Mukherji is one precise shot. The stars aligned once: right case, right judge, right moment right after Loper Bright. It worked.
On his LinkedIn Green now unabashedly writes:
“Only one attorney has won a Kazarian Step 2 lawsuit against USCIS! Accept no substitutes!”
Brian Green, LinkedIn banner after January 28, 2026
Subtle it isn’t, but as of now it’s true. He’s indeed the only one who’s won. And still the only one.
That matters for prospects. When you read “an attorney tore down Final Merits,” you might picture a gray-haired lawyer with thirty big trials behind him. The real picture is different. A thousand quiet suits over six years, then one loud win. And he builds everything on that one loud result.
That doesn’t negate the result. Mukherji is a real decision and it really works in RFE responses. But it tempers expectations, especially for people thinking right now, “I’ll go to Green.”
The community reaction was a flash. All public immigration attorneys in the U.S., from Murthy to Cyrus Mehta, applauded. Blogs called him “the person who finally asked the question everyone was afraid to ask.” The logic is simple: others criticized Final Merits for years in publications, but Green actually took it to court and demolished the procedure. The victory looks like a solo feat — perhaps because he largely remained a solo practitioner.
On the wave of publicity he built a funnel. He runs regular “Kazarian Litigation Webinars” on Sundays at 1:00 PM ET for about 300 people. One acquaintance received a private invitation from him, I quote literally:
Brian Green, webinar invitation (private correspondence)
“If after the webinar you still want to sue USCIS for your Kazarian Step 2 denial, we’ll send a link to a retainer agreement. The cost of the suit is $11,000, all expenses included.”
Price and service format are not publicly posted. It’s a one-on-one conversation.
Then the most interesting part followed — live correspondence. I first thought Green was running collective suits, something like “let’s chip in together and bring another case.” It turned out to be the opposite. When a second acquaintance asked him directly, he replied:
Brian Green, on individual vs class suits
“I only do individual suits. Class actions are too complex and expensive, and if you get the wrong judge everyone loses at once. Group suits get more resistance from the government. Individual suits, by contrast, inflict maximum trouble on the government and give you the best chances of success.”
Reasonable logic: 100 small suits across different districts will drown the agency faster than one big class action.
The logic is sensible. File not one big suit but a hundred small ones in different districts and USCIS will be overwhelmed. Each plaintiff’s case won’t depend on how the others fare.
What Green specifically proposes tactically is also interesting. Important caveat: the following appears in his private correspondence with potential clients and on closed webinars, not in public posts. His website (greenusimmigration.com) doesn’t list prices or strategy. It’s a one-on-one conversation.
In those conversations he explicitly says: motions to reopen and notices of appeal to the AAO are useless. Don’t waste time on them. Go straight to federal court under the APA. I quote directly from his letter to one acquaintance:
Brian Green, on the route after denial
“Motion or notice of appeal are useless. Federal court is better.”
Direct advice: skip AAO and go to federal court under the APA.
Timing-wise he promises 14 days for his office to prepare and file the suit plus 60 days for USCIS to respond. There’s nothing mystical here: 60 days is the standard government response time under the Federal Rules of Civil Procedure (Rule 12(a)(2)). So Green isn’t promising anything magical; he’s just reciting procedural deadlines. That actually supports his credibility: he doesn’t invent timelines.
Another pleasant detail: he says that if he wins, the $11,000 is returned to the client via USCIS, because U.S. law has the Equal Access to Justice Act (28 U.S.C. § 2412), which allows a court to award attorneys’ fees to a party that wins against the government.
Refund of $11,000 via EAJA: not automatic
This isn’t Green’s invention; it’s a working mechanism. But EAJA recovery is not automatic or guaranteed. The court must find the government’s position was not “substantially justified” (i.e., lacked reasonable justification). Also fee rates are capped at about $240 per hour adjusted for inflation. So theoretically $11,000 might be returned. Practically, you get what the court deems reasonable — not necessarily the whole $11,000.
Community reaction is mixed. Some say “this is the infrastructure of pressure on USCIS we’ve needed for twenty years.” Others wrinkle their brows: “$11,000 per suit is selling hope; if the case is weak no lawyer will pull it through.” Truth, as usual, is in the middle. Tactically he reasons sensibly, and his own track record speaks for itself. But this isn’t a magic wand for every denial. If your profile is weak and your RFE response is weak, suing for $11,000 can be an expensive way to get another denial — this time from a federal judge.
To me this part of the story is an important marker. Final Merits was untouchable for years; a strange equilibrium developed around it: everyone complained, no one sued. Mukherji broke that equilibrium. Right before our eyes a new model is forming: individual federal suits as a mass tool. Whether it will work remains to be seen in the next year to year-and-a-half.
Why the government appealed at all
This question is interesting to consider. On the surface the decision looks like a loss: five separate grounds, a thorough takedown. Why fight?
Here’s why.
So the government already has an appellate court on its side. They can point to Amin and say: “Our friends in the Fifth agree.” They’re not appealing out of desperation but with a concrete argument: colleagues in the Fifth sided with us; you’re the odd one out.
The catch is one word: timing.
Amin was decided in 2022 — before Loper Bright. Back then Chevron deference was alive and courts deferred to agencies. Now in 2026 that logic doesn’t work the same way. In the Eighth Circuit they don’t need to defer to others; they just look at the statute themselves.
Scare for USCIS
If the Eighth affirms Mukherji, we’ll have a split between circuits. The Fifth says one thing, the Eighth the opposite, and both might be legally defensible. By rule the Supreme Court must resolve such circuit splits. So the case could very likely go up to the Supreme Court.
And there the outcome is unpredictable. In the halls people are discussing: maybe USCIS doesn’t actually want to keep fighting. If they lose the Eighth, they go to the Supreme Court, which could issue a nationwide ruling that Final Merits is unlawful — that would be the end of the procedure.
There was another intermediate case people often forget: Scripps College v. Jaddou, right before Loper Bright. It also overturned an EB-1A denial but didn’t attack Final Merits directly; it took a softer route: “USCIS can’t, via a second stage, impose requirements that aren’t in the regulation.” Mukherji is the first court that didn’t mince words and tore down the procedure itself.
Critical date: May 11, 2026
In four days (updated — today it’s already) is the deadline for the government’s first filing in the Eighth Circuit. Lawyers call it the opening brief — the opening written argument.
From it we’ll see on what grounds USCIS will fight. There are three main tracks.
“Loper Bright doesn’t apply to us”
USCIS will try to rely on older deference doctrines (lawyers call them Skidmore and Auer). The argument: “Loper Bright was about statutory interpretation, while ours is a procedural issue, so deference still applies.”
“It’s guidance after all”
They’ll attempt to prove Final Merits is guidance, not a rule. If successful, no notice-and-comment was required. Robinson Immigration on JDSupra warns this road is dangerous: a loss would create appellate-level precedent, which is stronger than a district court decision.
“This is a unique case”
They’ll try to confine the decision to the narrow facts of Mukherji. She’s special and unusual — don’t turn this into a rejection of the whole procedure.
After the government’s brief, Mukherji has 30 days to respond, then the government gets a 14-day reply. No oral argument is currently scheduled. The Eighth Circuit’s schedule is at ca8.uscourts.gov.
What USCIS is doing right now
What is USCIS doing right now, more than three months after the decision?
From the outside: nothing.
A caveat: “nothing from the outside” doesn’t mean “absolutely nothing.” It means “we don’t see anything.” What’s happening behind closed doors could be one of three options.
Honestly, nothing
Sitting tight, watching the appeal, waiting for the Eighth. Why act if you can try to win it back on appeal?
Calm before the storm
Behind the scenes they may be drafting an NPRM (a new formal rule to tighten EB-1A), working on text, and DOJ lawyers are building the appellate strategy — all kept quiet because premature disclosure would hurt them.
Quiet internal retooling
Service center officers may already have internal guides on how to phrase denials to avoid Mukherji arguments. Such internal memos exist and rarely leak. By indirect signs (wording in fresh RFEs people complain about on forums) this isn’t impossible, though that’s speculation.
Which of the three is true is known by maybe twenty people in Washington. For the rest of us it’s watching behavior: keep an eye on the Policy Manual, the Federal Register, and fresh denials. Build the picture from indirect signs.
But publicly visible behavior is indeed quiet. And that’s perhaps the most interesting signal in the whole story.
The USCIS internal Policy Manual (the main officer instruction) hasn’t changed. The two-step Kazarian process remains intact. The last substantive EB-1A update was in October 2024; since then only cosmetic edits. Track updates here.
USCIS is planning a formal rule (its docket lists RIN 1615-AC85, titled “Petition for Immigrant Worker Reforms”). It hasn’t been published yet. All signs point toward tightening, not liberalizing. So the plan appears to be: don’t cancel Final Merits, but put it through formal notice-and-comment to make it lawful. That would neuter the Mukherji argument.
Service centers (Nebraska, Texas, Potomac) continue to apply Final Merits nationwide. USCIS’s internal appeals body (the AAO) doesn’t mention Mukherji in its database of decisions (AAO decisions). No public statements from USCIS leadership have been made.
Legally vs practically
Legally, the second stage is significantly weakened. Practically, at the officer level reading your PDF nothing has changed. Funny picture: the house is on fire and the residents are drinking tea.
What Mukherji actually proved and who she is
Context matters. Visa Lawyer Blog breaks down the facts. Mukherji satisfied five of the ten criteria. Almost double the minimum. USCIS didn’t challenge the criteria.
The denial hinged on one sentence: “She did not demonstrate sustained national or international acclaim after 2015.”
In other words, the officer invented a “freshness” requirement and denied on that basis.
Anahita Mukherji herself is an investigative journalist. She worked ten years for the Times of India, and has been published in Al Jazeera English, Quartz, Scroll.in, The Wire. Known for investigations into caste discrimination in Silicon Valley. Awards: Sanskriti Award, Sanctuary Asia, Australia India Council Young Media Fellowship, Felix Scholarship for an MA at SOAS in London. Profile here.
So she’s not an academic with Web of Science citations. She’s a journalist with a reputation and a portfolio; her recognition was built over years in one form (Times of India) and then smoothly shifted to another (investigative journalism on international outlets).
USCIS labeled that change of form as a “break” in recognition. The court said: that’s not a valid ground for denial.
Why this still matters for practice
Not because Mukherji will instantly overturn Final Merits tomorrow.
But because it’s the first EB-1A decision after Loper Bright that actually dismantled part of USCIS’s procedure.
Before 2024 such suits hit the Chevron wall and broke. Courts deferred and the agency prevailed. Now Chevron is gone. The math of every suit against USCIS changed.
The combo “Mukherji + Loper Bright + notice-and-comment” has already become a standard argument in RFE responses.
What law firms recommend
Wildes & Weinberg advises: demand specificity from the officer instead of vague phrases like “insufficient sustained recognition,” reject the standard of being “forever at the top,” and insist the officer point to concrete evaluation criteria.
Mandamus Lawyers go further. They push federal suits as the main tactic, citing Darby v. Cisneros (1993). The logic: under 8 CFR § 103.3(a)(2) it’s not strictly necessary to pursue internal USCIS appeal first because it says “may” not “must.”
Two roads after denial: AAO or straight to court
Denied. Where to go?
Road one. Internal appeal to the AAO
Six–twelve months. Reversals are rare (around 7%). Worse: USCIS gets a chance to refine its initial denial into a smarter formulation. After AAO your position in court may be weaker than it is now.
Road two. Straight to federal court
Twelve–twenty-four months. After Loper Bright the judge looks at the case themselves. A weakly phrased denial becomes your main weapon.
Previously the choice was obvious: AAO was cheaper and more predictable. Not so now.
What’s important to know about a federal suit
If you decide to go to court, there are three things to know in advance.
The judge looks only at the record USCIS had
You can’t add new evidence. Either your RFE response was strong, or the court won’t help you.
The judge checks three things
Whether the agency acted arbitrarily, abused its authority, or violated the law.
Deadlines are strict
Choosing between re-filing, AAO, or going to court is a decision in the first weeks after denial.
What to watch in the next month
- May 11, deadline for the government’s opening brief in the Eighth Circuit (docket 26-1578).
- Supportive briefs (amicus briefs) from AILA, Cato Institute, Niskanen Center. None filed yet, but expected.
- Parallel suits in other districts. Cyrus Mehta expects them in Washington, New York, and Northern California. Track via CourtListener RECAP.
- Updates to the USCIS Policy Manual: uscis.gov/policy-manual/updates.
- Federal Register for publication of the proposed rule RIN 1615-AC85.
Full text of Judge Bataillon’s opinion
Available via PACER (entry dated January 28, 2026). Access costs about $3. Don’t be stingy.
Key takeaways in five points
USCIS hasn’t issued Mukherji’s green card. The district court decision isn’t stayed, but the agency appealed to the Eighth Circuit. The difference between “won at district” and “got a green card” is huge right now.
Final Merits was struck down on five lines: it’s a rule not guidance; no public notice-and-comment; the 2010 course change wasn’t publicly acknowledged; Loper Bright removed Chevron deference; the “forever at the top” requirement isn’t in the statute.
“The Court finds nothing in the statute that supports such a requirement.” This phrase is now inserted into many RFE replies challenging “freshness” demands.
Solo practitioner from Denver; so far the only attorney to win a Kazarian Step 2 case. $11,000 per individual suit, possible EAJA recovery, rejects class actions in favor of mass individual filings.
The government’s opening brief in the Eighth Circuit. It will reveal whether USCIS argues: “Loper Bright doesn’t apply,” “this is guidance,” or “this is a unique case.” Also watch parallel suits and RIN 1615-AC85 in the Federal Register.
I am not an attorney, and this post is not legal advice. The information is based on public sources, court documents, publications by immigration attorneys, and community observations. Specific details about strategy and attorneys’ fees are drawn from private communications and may change. If you have a denial, RFE, NOID, or are choosing between AAO, a motion, or federal court, consult a licensed immigration attorney about your situation.