Disclaimer: This post expresses the author’s personal legal analysis and opinion. It does not represent an official position of the firm and is not legal advice. Immigration outcomes depend on individual facts and applicable law.

Kazarian Is Not Dead—And It Doesn’t Need to Be

In the wake of Mukherji v. USCIS, there has been a predictable rush to declare Kazarian, the EB-1A two-step review process, dead. That’s understandable. 

A federal district court just held that USCIS’s use of the “final merits determination” was unlawful, adopted without notice-and-comment rulemaking, and inconsistent with the Immigration and Nationality Act. For anyone who has spent the last year fighting increasingly aggressive EB-1A denials, the decision feels like vindication.

But let’s be clear from the outset: Kazarian is not dead. Not even close. And more importantly, we don’t need it to be.

To understand why, it helps to step back and look at how we got here.

Why EB-1A Matters

Employment-based green cards are allocated across five preference categories, colloquially known as EB-1 through EB-5. 

At the top sits EB-1A—the extraordinary ability category. For nationals of India and China, EB-1A often offers dramatically shorter wait times than EB-2 or EB-3, where backlogs can stretch five to thirteen years. Some projections suggest that many people currently in those queues may never receive green cards at all under current trajectories.

For those individuals, EB-1A is not just attractive—it is often the only realistic path to permanent residence in a reasonable timeframe, or plausibly ever.

For applicants from the rest of the world, EB-1A carries a different appeal: it does not require a job offer. It allows people to self-petition, freeing them from dependence on a single employer and enabling true professional mobility.

EB-1A Criteria and Extraordinary Ability

The problem, of course, is that EB-1A is supposed to be hard.

In the most common pathway - absent a one-time internationally recognized award like a Nobel Prize or Olympic medal—applicants must satisfy at least three out of ten regulatory criteria. These include things like authorship of scholarly articles, high compensation, judging the work of others, or published material about the applicant in major media. These criteria were deliberately designed to be difficult to “manufacture.” They were meant to function as proxies for genuine acclaim, not as a checklist that could be gamed.

And yet, that is precisely what began to happen.

What Is the Final Merits Determination?

As green-card backlogs worsened, a cottage industry emerged - particularly targeting Indian and Chinese professionals in Big Tech- promising to “build” EB-1A profiles. Many of these candidates already worked for prestigious companies, earned high salaries, and were exceptionally capable. With enough coaching, they could publish in lower-tier journals, judge hackathons or university competitions, secure selective media coverage, and assemble a record that technically met the regulatory criteria.

USCIS noticed.

Beginning in the late 2000s, the agency developed a strategy to tamp down these perceived “borderline” cases. The three-of-ten criteria, USCIS decided, were necessary but not sufficient. Even if an applicant met the regulatory threshold, officers would conduct a second, more subjective inquiry into whether the person truly belonged to that “small percentage at the very top of the field.”

This became known as the “final merits determination.”

The problem is that this second step appears nowhere in the statute, nowhere in the regulations, and nowhere in the administrative rule making record. It was an agency invention born of frustration with outcomes USCIS did not like, not from congressional command.

Kazarian v. USCIS Explained

The framework traces back to Kazarian v. USCIS. In 2005, Poghos Kazarian, an Armenian-born theoretical physicist, had his EB-1A petition denied and challenged that decision in federal court, eventually reaching the Ninth Circuit. In 2010, the court upheld USCIS’s two-step adjudicatory framework as a permissible interpretation of the regulations.

Since then, USCIS has treated Kazarian as judicial ratification of its “final merits” analysis—even though that is not quite what the court decided. As immigration attorney Joe Adams has pointed out to me recently (www.jaesq.com), USCIS never actually reached a final merits determination in Dr. Kazarian’s case because the petition was denied at the first step for allegedly failing to satisfy the three-of-ten criteria. The Ninth Circuit rejected USCIS’s reasoning at that stage, holding that the agency had improperly imposed additional requirements not found in the regulations. The court referenced the more flexible final merits inquiry largely as a contrast to the rigid, threshold analysis USCIS had misapplied, but it did not squarely analyze whether the final merits framework itself was required - or even authorized - by statute or regulation.

Nonetheless, USCIS seized on Kazarian as an endorsement of its two-step approach, and courts have largely followed that characterization ever since. Shortly afterwards, USCIS memorialized the process in a policy memorandum, instructing officers nationwide on how to apply a formal final merits analysis.

For years, this second step existed mostly in the background. In our experience, it was used sparingly. But that changed in mid-2025. Under a Trump-led USCIS, final merits denials surged—even in cases where applicants satisfied five, six, or seven criteria. According to some sources, approval rates reportedly fell from historical norms of 60–70% to as low as 30%.

That brings us to Nebraska.

Mukherji v. USCIS: The Court Ruling

In Mukherji v. USCIS, the U.S. District Court for the District of Nebraska did something far more aggressive than simply reversing a denial. It held that USCIS’s adoption of the final merits determination itself was unlawful: a legislative rule implemented without notice and comment, in violation of the Administrative Procedure Act. The court concluded that USCIS lacked authority to impose this extra-regulatory requirement and ordered the agency to approve the petition.

It is a striking decision. It is also very limited.

Does Mukherji End Kazarian?

Mukherji is binding on exactly one case: Ms. Anahita Mukherji’s. It is not binding on other I-140 petitions, not even those adjudicated by the Nebraska Service Center. District court decisions bind only the parties before them. USCIS officers know this, and they routinely say so - often bluntly - when applicants cite non-binding precedent.

In the short term, then, not much changes.

The only way Mukherji becomes binding precedent is if USCIS appeals and loses before the Eighth Circuit Court of Appeals. USCIS can avoid that outcome entirely by declining to appeal and simply approving the petition, which is precisely what many observers expect. Even if the Eighth Circuit were to affirm, the decision would apply only within that circuit—and USCIS could still attempt to blunt its impact through internal case-routing decisions.

So no, Kazarian is not dead. And Mukherji will not, by itself, change the trajectory of EB-1A adjudications.

The Real Issue: How USCIS Applies Final Merits

But here is the crucial point: we shouldn't need Kazarian to be dead to win EB-1A cases.

What we need—what applicants desperately need—is for USCIS to follow its own rules.

The USCIS Policy Manual already cabins the final merits analysis. It requires officers to conduct a full and fair evaluation of the entire record. Officers may not demand specific types of evidence. They may not limit their analysis to evidence submitted under the regulatory criteria. They must evaluate each piece of evidence individually and explain, with specificity, why it fails to establish extraordinary ability.

Yet that does not appear to be happening.

Instead, we are seeing officers ask for particular forms of proof, discount valid evidence because it does not look the way they expect, ignore evidence outside the regulatory buckets, and apply an ever-moving, undefined standard of “excellence.” We are also seeing a persistent misreading of the word “sustained,” with officers treating recent achievements as inherently insufficient—as if acclaim must stretch back decades to count.

That interpretation is wrong. “Sustained” means maintained, not ancient. Both common usage and the Policy Manual make clear that there is no age requirement, no minimum duration, and no prohibition on early-career acclaim.

Federal courts—including the District of Nebraska in multiple EB-1 cases—have repeatedly reversed denials on precisely these grounds, finding USCIS’s reasoning arbitrary and capricious. Mukherji fits squarely within that line of cases. It does not revolutionize the law. It reinforces something courts have been saying for years: USCIS cannot invent standards, ignore its guidance, or deny petitions based on vibes.

Mukherji will not end Kazarian. What it does do, along with these other cases, is lay the groundwork for more comprehensive challenges to the framework itself. In the meantime, it gives practitioners a powerful reminder: the most effective argument today is not that the final merits test is invalid, but that USCIS is misapplying it.

For now, Kazarian remains the law of the land. And until that changes, all we can do is insist that USCIS follow its own rules when applying it.