When an EB-1A Denial Raises Legal Red Flags
A federal district court in Nebraska recently overturned the denial of an extraordinary ability petition in Mukherji v. Miller, finding that the agency’s “final merits” determination was unlawful. This EB-1A decision underscores an important point for individuals: whose applications have been denied by USCIS: An EB-1A denial may end the administrative process, but it does not necessarily mean the petitioner is out of options. A challenge in federal court may be the best place to correct agency errors.
In Mukherji, the United States District Court for the District of Nebraska vacated USCIS’s denial and remanded the petition with instructions to approve the I-140 petition. The court found that USCIS’s final merits determination under Kazarian v. USCIS was arbitrary and capricious and did not comply with agency rulemaking requirements. The court focused on the history of the Immigration and Nationality Act (INA) and the agency’s approach to assessing EB-1A eligibility and concluded that USCIS was imposing requirements on EB-1A applicants that go beyond the eligibility requirements established by Congress.
EB-1A petitioners are uniquely positioned to seek review of denials in federal court. Courts are paying closer attention to whether USCIS decisions follow the statute and will call them to task when USCIS invents new standards or criteria that are not based on the statutory eligibility requirements. As a result, an EB-1A denial is not always the final word and, in the right circumstances, may be challenged through federal litigation.
The Legal Framework and USCIS’s Two-Step Analysis After Kazarian
The EB-1A classification is governed by statute. Under the INA, to qualify, a petitioner must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The petitioner must extensively document their achievements, show that they seek entry to continue work in their field, and that their entry will substantially benefit the United States. Evidence of sustained national or international acclaim can be demonstrated either through a single “major” award, like a Nobel Prize, or by meeting three of ten regulatory criteria. Those criteria include honorifics such as “lesser” national and international awards, associational membership, or high remuneration, among others.
In the years that followed, courts adopted inconsistent approaches to reviewing USCIS EB-1A eligibility determinations. Some courts held that the examination of the regulatory criteria constituted the sole step in determining eligibility, and that a petition should be approved when a petitioner satisfied at least three of the criteria. Others, like the Ninth Circuit in Kazarian v. USCIS, viewed the eligibility analysis as requiring an additional step in which the officer should confirm, based on the totality of the evidence submitted, that the applicant is at the very top of their field.
Following the Ninth Circuit’s decision in Kazarian, USCIS adopted a two-step process for evaluating EB-1A eligibility. The guidance directs that the officer should first determine whether the petitioner satisfies at least three of the ten regulatory criteria. If it does, then the officer should conduct a final merits determination to assess whether the evidence as a whole demonstrates extraordinary ability. Notably, the new guidance was not introduced through the notice-and-comment rulemaking process, a process that is required if the policy is considered a “substantive” rather than an “interpretive” rule. In this case, USCIS decided that the change was interpretative and put it into effort without notifying the public of its proposal, receiving public comment on the change, or providing an explanation for the change.
USCIS has applied the Kazarian two-step framework since 2010. However, USCIS now increasingly relies on step two to deny petitions, even where the petitioner satisfies well over the minimum number of regulatory criteria. In some cases, adjudicators use step two to invent new, heightened adjudicatory standards that are not reflected in the regulations or the statute. These decisions often fail to explain the source of the announced standard, how USCIS evaluated the evidence, or why it was found insufficient.
The Mukherji Decision: A Federal Court Pushes Back
In Mukherji v. Miller, the United States District Court for the District of Nebraska confronted these issues. The plaintiff met five regulatory criteria, but USCIS still denied the petition at the final stage, saying she lacked sustained national or international acclaim.
The court took issue with USCIS’s two-step analysis. It determined that USCIS had unlawfully adopted the two-step framework without notice and comment rulemaking and without justifying its decision to adopt a two-step analysis. The court also criticized the agency for failing to identify a clear standard to govern the second step of its analysis and for suggesting that an applicant is “required to stay indefinitely at the top of their field” to qualify for an EB-1A. The court concluded that this added requirement has no basis in the statute.
The court vacated the agency’s denial, and remanded the petition to USCIS with an instruction that the agency grant the petition. Although it is common for courts to vacate and remand, it is less common for a court to direct that the agency issue an approval on remand. The decision to do so here reflects the court’s frustration with the agency’s analysis of the petition, lack of standard governing its review, and failure to explain the basis for the denial.
Life After Chevron: What This Means for EB-1A Petitioners Facing Denial
The decision is a positive sign that courts are willing to hold agencies to law. The court cited the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo (2024), to emphasize that courts, not agencies, decide questions of law. In Loper Bright, the Supreme Court overruled the agency deference framework established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984). Under Chevron, courts deferred to an agency’s reasonable interpretation of the law, even if the interpretation was not one that the court itself would adopt on a de novo review. Loper Bright therefore increased the level of scrutiny courts can apply to agency interpretations of law.
For EB-1A cases, this shift is critical. Petitioners can use Loper Bright to challenge agency efforts to impose heightened eligibility standards that are not based in the statute. Petitioners should be skeptical of denial language that appears to announce rigid rules, such as “an applicant must always show” or “it is never sufficient to demonstrate.” Phrases like these may indicate that USCIS is attempting to add a new standard, rather than making a judgment about the quality of the evidence presented.
Federal Litigation as a Strategic Next Step
The core takeaway is this: EB-1A denials may be successfully challenged when they rest on an improper interpretation of the INA.
In the wake of Loper Bright, courts are increasingly willing to take a hard look at agency rules and adjudicatory frameworks that previously benefited from Chevron deference. While the Mukherji decision does not alter USCIS adjudications as a matter of policy, it offers an example of how courts may analyze similar legal challenges in individual cases. After Mukherji, many step-two denials may be worth a closer look to determine whether the denial can be challenged in a court that is likely to be similarly skeptical of the Kazarian two-step framework. Applicants may also consider whether the agency fairly applied the regulatory criteria, or whether the agency is imposing additional eligibility requirements that are not found in the INA.
For EB-1A petitioners, a denial should prompt careful evaluation, not resignation. If your EB-1A petition was denied, our attorneys can evaluate whether federal litigation is the right next step. If you are considering federal litigation or want an informed assessment of your options, we can provide a careful evaluation of your case.