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    IMMIGRATION                                                              JUNE 26, 2026     |  The Indian Eye 36

                USCIS Withdraws Appeal in Mukherji:

                 What Changes—And What Does Not?

            BY CYRUS D. MEHTA AND MAN-  drawn its appeal.          to withdraw its appeal, leav-  whether  the  beneficiary  has   nate  the  “final  merits  deter-
                                           While the withdrawal of   ing the district court’s ruling   risen to the top of the field.   mination” in all cases,  nor
            JEETA CHOWDHARY
                                       the appeal is noteworthy, its   intact in that individual case.  Petitioners should therefore   does it automatically alter
                                       practical  significance  should   The withdrawal of the   continue  preparing  filings   how petitions will be adjudi-
               n our previous blog, we   not be overstated. The de-  appeal is undoubtedly sig-  with the expectation that a   cated tomorrow. However,
               discussed the decision
            Iof a district court in Ne-  cision does not necessarily   nificant, but it is equally im-  holistic review will occur. In-  the case may provide an ad-
                                                                                              deed, the USCIS has been
                                                                   portant to understand what it
                                       signal an immediate change
                                                                                                                         ditional point of discussion
            braska in Mukherji v. Miller,   in how USCIS adjudicates ex-  does not mean.      denying EB-1A petitions    in litigation involving denials
            which relied on Loper Bright   traordinary ability petitions.  First, the  withdrawal   even where the petitioner has   where USCIS appears to im-
            principles to overturn an EB-  To briefly recap, the dis-  does not create  a  binding   met three or more of the ten   pose expectations untethered
            1A denial based on USCIS’s   trict court in Mukherji held   precedent beyond the dis-  criteria for determining ex-  from the regulatory text. It
            use  of  the  “final  merits  de-  that USCIS improperly de-  trict court case itself. Had   traordinary ability.   also serves as a reminder
            termination” framework. As   nied the petitioner’s EB-1A   the Eighth Circuit issued a   At  the  same  time,  it   that courts may increasing-
            explained  in  that  post,  the   petition by relying on a sec-  decision  affirming  the  lower   would  be  difficult  to  ignore   ly scrutinize agency-created
            court questioned whether   ond evaluative step—the     court, the ruling may have   the  broader  significance  of   frameworks in the post-Lop-
            USCIS could lawfully impose   so-called “final merits deter-  carried broader precedential   USCIS’s decision not to pur-  er Bright era. It is surprising
            an adjudicatory structure that   mination”—that, according   value within that jurisdiction   sue the appeal. One possible   that the USCIS withdrew
            was not expressly grounded in   to the court, was not prop-  and  potentially  influenced   explanation is institutional   its appeal in the Eight Cir-
            statute or regulation. USCIS   erly adopted through no-  courts elsewhere. By with-  caution. If USCIS had pro-  cuit, which is conservative,
            had appealed that decision   tice-and-comment rulemak-  drawing  the  appeal,  USCIS   ceeded  and  lost  before  the   which means that after Loper
            to the U.S. Court of Appeals   ing under the Administrative   avoided an appellate ruling   Eighth Circuit, it risked creat-  Bright the final merits deter-
            for the Eighth Circuit. Brian   Procedure Act (APA). Rather   on the merits.      ing an unfavorable appellate   mination is vulnerable in any
            Green, who was lead coun-  than continuing to litigate the   Second, USCIS has not   decision concerning the agen-  federal court.
            sel in Mukherji v. Miller has   matter before the Eighth Cir-  rescinded  its  long-standing   cy’s authority to impose ad-  Whether Mukherji ul-
            posted that USCIS has with-
                                       cuit, USCIS has now chosen   adjudicatory approach to ex-  judicatory standards not ex-  timately proves to be an iso-
                                                                      traordinary  ability  peti-  pressly rooted  in regulation.   lated district court decision
                                                                      tions, and it does not ap-  The decision to withdraw the   or the beginning of a broad-
                                                                      pear that the government   appeal may therefore reflect   er  reassessment  of  extraor-
                                                                      withdrew the appeal be-  an effort to preserve flexibility   dinary ability adjudications
                                                                      cause it plans to rescind   while avoiding a precedential   remains to be seen. What is
                                                                      the  final  merits  deter-  rule  with  wider  consequenc-  clear, however, is  that  US-
                                                                      mination policy. USCIS   es, and to allow the USCIS   CIS’s withdrawal of its appeal
                                                                      is still likely to continue   to  deny  meritorious  EB-1A   leaves unresolved—but very
                                                                      adjudicating EB-1A and   cases with impunity under the   much alive—the broader de-
                                                                      EB-1B petitions using   final merits determination.  bate over the limits of agen-
                                                                      the familiar framework     For  individuals  pursuing   cy authority in immigration
                                                                      associated with the Ninth   extraordinary ability classi-  adjudications that are not
                                                                      Circuit decision in Ka-  fications,  the  practical  take-  tethered to the INA, particu-
                                                                      zarian v. USCIS, includ-  away is measured rather than   larly in the post-Loper Bright
                                                                      ing a broader evaluation   dramatic.  While Mukherji   landscape.
                                                                      of whether the evidence   eliminated  the  “final  merits   Manjeeta Chowdhary is
                                                                      collectively demonstrates   determination” in that case,   an Associate at Cyrus D. Mehta
                                                                      sustained acclaim and   it does  not broadly elimi-      & Partners PLLC

                                                                      _____________________________________________________________________________________________
                                                                      Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner
                                                                      of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative
                          m of                                        Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel
                                                                      on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First Depart-
               CYRUS D. MEHTA & PARTNERS PLLC                         ment, New York; member of the ABA Commission on Immigration; board member of Volunteers for Legal
                                                                      Services and board member of New York Immigration Coalition.  Mr. Mehta is the former chair of the

                 Board of Trustees of the American Immigration Council and former chair of the Committee on Immigra-
                                                                      tion and Nationality Law of the New York City Bar Association. He is a frequent speaker and writer on

                                various immigration-related issues, including on ethics, and is also an adjunct professor of law at Brooklyn

                                                                       Law School, where he teaches a course entitled Immigration and Work.  Mr. Mehta received the AILA
                                                                      2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA
                                                                      2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation
                                                                      in the immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016.
                                                                      Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who Legal –
              2              6th Floor                                Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in

                    immigration law, among other rankings.

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