Since Kazarian v. USCIS (9th Cir. 2010) and USCIS's 2010 policy memo, extraordinary ability petitions have been reviewed in two steps: first, whether the petitioner meets at least three of the ten regulatory criteria; second, a "final merits determination" of whether the evidence as a whole shows sustained acclaim. Many denials happen at step two, even when USCIS agrees the criteria are met.

The split:

In Mukherji v. Miller (D. Neb. Jan. 28, 2026), the court set aside an EB-1A denial in which USCIS had conceded five criteria. Exercising independent judgment under Loper Bright, it held the two-step framework was adopted without notice and comment and without a reasoned explanation for the change. It also faulted USCIS for effectively requiring continuous awards to show sustained acclaim, and it ordered the petition approved. The government appealed, then dropped the appeal in June.

In Agarwal v. Miller (D. Neb. Sept. 25, 2026), a different judge in the same district declined to follow Mukherji. He held that final merits review tracks the statute's sustained acclaim requirement and that the 2010 memo is an interpretive rule that did not need notice and comment. He dismissed the case with prejudice, the third time he has upheld the framework.

What it means:

• Mukherji remains the outlier. The Fifth Circuit upheld the two-step framework in Amin v. Mayorkas (2022), though before Loper Bright, and no appeals court has revisited it since. Mukherji helped that petitioner; Agarwal shows the argument can lose, even in the same courthouse.

• One point in Agarwal helps petitioners: a challenge to the 2010 policy is not time-barred, because the six-year clock runs from the denial, not from 2010.

• A final merits denial is still worth evaluating for federal court review, especially where USCIS concedes most criteria and the denial sits uneasily with its own favorable findings.

• For new filings, write for step two from the start. Tie each criterion back to sustained national or international acclaim and standing at the top of the field, rather than simply counting criteria.

• USCIS applies a similar two-step review to O-1A and EB-1B petitions, so watch whether these arguments travel.

***Disclaimer: This post is for general informational purposes and does not constitute legal advice. Every case is fact specific. Please contact our office to discuss how this decision may affect your individual situation.***