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    IMMIGRATION                                                        FEBRUARY 20, 2026       |  The Indian Eye 38

                  Federal Court Relies on Loper Bright

                to Overturn EB-1 Denial Based on the

                              Final Merits Determination

            CYRUS MEHTA                sification through the “final  will  substantially  benefit   leading or cultural role  changing its position and
                                       merits determination.”      prospectively the U.S. See     for organizations or es-  that there are good reasons
               n Mukherji v. Miller, a     As background, an in-   INA  §  203(b)(1)(A)(ii)       tablishments that have a  for the new policy. This did
               district court in Nebraska   dividual can obtain perma-  & (iii). Unlike most oth-  distinguished reputation.  not  happen  with  the  final
            Irecently set aside the de-  nent residence in the U.S.  er petitions, no job offer is   • High salary or remunera-  merits determination.
            nial of a petition of extraor-  under EB-1 by establishing  required and one can even   tion in relation to others in   Perhaps  the  most  sig-
            dinary ability on the ground     extraordinary ability in the  self-petition for permanent   the field.      nificant part of the decision
            that the “final merits” deter-  sciences, arts, education,  residency.  Evidence  to  • Commercial success in the  is that the court acknowl-
            mination was unlawful.     business or athletics which   demonstrate “sustained na-  performing arts.        edged  Loper Bright Enter-
                Although the petition-  has been demonstrated by  tional or international ac-    See 8 C.F.R. § 204.5(h)  prises v. Raimundo, where-
            er  satisfied  five  out  of  the   sustained national or in-  claim” could be a one-time  (3)(i)-(x). An applicant may  in the Supreme Court in
            ten criteria for establishing   ternational acclaim and  achievement such as a ma-  also submit comparable  2024 diminished the validity
            extraordinary under 8 CFR   whose achievements have  jor international award (for  evidence if the above stan-  of deference to an agency’s
            204.5(h)(3),  when  only   been recognized in the  example, a Nobel Prize,  dards do not readily apply.      interpretation of a statute
            three were needed to be    field  through  extensive  Oscar or Olympic Gold          The     Plaintiff  in   under Chevron.  With the
            satisfied, the USCIS denied   documentation. See INA  Medal). If the applicant is   Mukherjee v. Miller con-  very limited deference after
            the extraordinary ability pe-  § 203(b)(1)(A)(i). Further-  not the recipient of such an  tended that this “final mer-  Loper Bright, all questions
            tition because the petitioner   more, the individual seeks  award, then documentation  its” determination is not  of law will be determined
            failed to establish the “high   entry to continue work in  of any three of the follow-  found in the statute or regu-  by the  Court. The validity
            level of expertise required   the area of extraordinary  ing is sufficient:       lation and is taken from the  of the final merits determi-
            for the E11 immigrant clas-  ability and his or her entry   • Receipt of lesser nation-  Ninth Circuit’s decision in  nation is clearly a question
                                                                      ally or internationally   Kazarian v. USICS, which  of law, not fact. According-
                                                                      recognized  prizes  or  the USCIS adopted as a  ly the Court found that the
                                                                      awards.                 nation-wide policy on De-  two-tier analysis was not
                                                                      •  Membership in an as-  cember 2, 2020. The Court  valid at its inception.
                                                                      sociation in the field for   held that the USCIS did not   Mukherjee v. Miller
                                                                      which  classification  is   properly create the two step  did not go against Kazarian
                                                                      sought, which requires   process. Indeed, the USICS  in its entirety, it only found
                                                                      outstanding achievement   unlawfully  adopted  the  fi-  that the final merits deter-
                                                                      of its members, as judged   nal merits determination  mination was unlawful. In
                                                                      by recognized national or   without notice and com-  my prior blog entitled The
                                                                      international experts.  ment rulemaking. The final  Curse of Kazarian v. US-
                                                                      •  Published  material  merits determination had  CIS in Extraordinary Abili-
                                                                      about the person in pro-  the force of law, and the  ty Adjudications under the
                                                                      fessional or major trade   USCIS ought to have ordi-  Employment-Based First
                                                                      publications or other ma-  narily abided by the notice  Preference I wrote that
                                                                      jor media.              and comment procedures  when  Kazarian  was  first
                                                                      •  Participation  as  a  prescribed by the Admin-  decided, it was received
                                                                      judge of the work of oth-  istrative  Procedure  Act,  7  with much jubilation  as it
                                                                      ers.                    U.S.C. § 553(b).           was thought that the stan-
                                                                      •  Evidence of origi-      In addition, the agency  dards  for  establishing  ex-
                                                                      nal  scientific,  scholas-  acted arbitrarily and capri-  traordinary ability would
                         m of                                         tic,  artistic,  athletic  or   ciously for failing to ac-  be more straightforward
              CYRUS D. MEHTA & PARTNERS PLLC                          business-related contri-  knowledge and reason that  and streamlined. Kazarian
                                                                      butions  of  major  signifi-  it was changing its policy.  essentially holds that a pe-

                 cance.  Pursuant to Encino Motor-  titioner claiming extraordi-
                                                                      •  Authorship of  schol-  cars LLC v. Navarro, agen-  nary ability need not submit

                                            cies are free to change their  extraordinary evidence to

                        arly  articles  in  the  field,
                                                                      in professional or major

                                                                       existing policies as long as  prove that he or she is a per-
                                                                      trade publications or oth-  they provide a reasoned  son of extraordinary ability.

                                                                      er media.
                                                                      •  Artistic exhibitions or   explanation for the change.  If one of the evidentiary cri-
                                                                                              Encino Motorcars requires  teria requires a showing of
              2              6th Floor                                showcases.              that the agency must dis-  scholarly publications, the

                    •  Performance  in  a   play awareness that it is  petitioner need not estab-

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