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IMMIGRATION OCTOBER 30, 2026 | The Indian Eye 38
Agarwal v. Miller Clashes
with Mukherji v. Miller
Over the EB-1 Final Merits
Determination
BY CYRUS D. MEHTA AND Buescher dismissed a chal- dicatory framework that is tor decides whether the ev- dent judicial judgment after
lenge to USCIS’s “final mer- not expressly set out in the idence meets at least three Loper Bright.
MANJEETA CHOWDHARY
its determination,” declining Immigration and Nationality regulatory criteria. At step USCIS initially ap-
to follow the earlier decision Act or its implementing reg- two—the “final merits de- pealed but later with-
federal district court in Mukherji v. Miller, which ulations. The disagreement termination”—the adjudica- drew the appeal. That left
in Nebraska has re-
A opened a consequen- had invalidated that second matters not only to EB-1A tor evaluates the record as a Mukherji intact for the in-
step of the agency’s analysis.
petitioners, but also to the
dividual petitioner without
whole to decide whether the
tial debate over how U.S. broader question of how beneficiary possesses the re- creating binding appellate
Citizenship and Immigration The result is striking. much interpretive latitude quired high level of expertise precedent. It also left unre-
Services adjudicates EB-1A Two judges in the same dis- agencies retain after Loper and sustained acclaim. solved whether other courts
extraordinary ability peti- trict have reached opposing Bright Enterprises v. Rai- The controversy arises would accept its reasoning.
tions. In Agarwal v. Miller, conclusions about an adju- mondo. because neither the statu- Agarwal Takes the Opposite
Chief District Judge Brian C.
THE EB-1A tory text nor the regulation Path
FRAMEWORK AND expressly labels or describes Agarwal arose from a
THE CONTESTED this second step. In practice, materially similar challenge.
SECOND STEP petitioners can satisfy three, The plaintiff attacked US-
four, or even five criteria and CIS’s denial of an EB-1A
ongress reserved still be denied because US- petition and the agency’s re-
the EB-1A clas- CIS concludes that the evi- liance on the Kazarian two-
Csification for indi- dence, viewed in its totality, step policy. Judge Buescher
viduals of extraordinary does not show that the ben- rejected the challenge and
ability in the sciences, eficiary is among the small dismissed the complaint
arts, education, business, percentage at the very top of with prejudice:
or athletics whose ability the field. “In these circumstanc-
has been demonstrated MUKHERJI’S es, even though Agarw-
by sustained national or CHALLENGE TO al prefers the post-Loper
international acclaim THE FINAL MERITS Bright Enterprises deci-
and whose achievements DETERMINATION sion in Mukherji v. Miller,
have been recognized No. 4:24CV3170, 2026 WL
through extensive doc- n Mukherji v. Miller, 895708 (D. Neb. Jan. 28,
umentation. See INA another judge in the 2026), the Court declines to
§ 203(b)(1)(A). The IDistrict of Nebraska set follow Mukherji because it
regulations at 8 C.F.R. aside an EB-1A denial af- is unsound and unconvinc-
§ 204.5(h)(3)(i)-(x) per- ter USCIS acknowledged ing.”
m of mit a petitioner to estab- that the petitioner satis- The court relying on
CYRUS D. MEHTA & PARTNERS PLLC lish eligibility through a fied five regulatory crite- the Fifth Circuit decision in
internationally
Amin v. Mayorkas treated
ria. The court concluded
major,
recognized award or by that the agency’s two-step the final merits inquiry not
satisfying at least three framework had not been as an unlawful extra-regu-
of ten enumerated evi- validly adopted through no- latory hurdle, but as a per-
dentiary criteria. tice-and-comment rulemak- missible means of deciding
Following the Ninth ing, that USCIS had not whether the petitioner ulti-
Circuit’s decision in Ka- adequately explained the mately satisfied the statuto-
zarian v. USCIS, the policy change, and that the ry requirement of extraordi-
agency developed a legality of the final merits nary ability demonstrated by
2 6th Floor two-step framework. At determination presented a sustained acclaim. On this
step one, the adjudica- question of law for indepen- view, meeting three regula-
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