Page 38 - The Indian EYE 022026

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-

www.TheIndianEYE.com