2026 USCIS EB-1A Court Split: Agarwal v. Miller Rejects Mukherji Final Merits Ruling

A federal district court in Nebraska has deepened a significant split in immigration adjudication law, with Chief Judge Brian C. Buescher dismissing a challenge to USCIS's 'final merits determination' framework in Agarwal v. Miller. The ruling directly conflicts with an earlier decision in Mukherji v. Miller from the same district, which had invalidated that second step of the agency's EB-1A analysis. The result is two judges in the same court reaching diametrically opposing conclusions about an adjudicatory standard not expressly codified in the Immigration and Nationality Act or its regulations. At issue is USCIS's two-step framework developed after the Ninth Circuit's Kazarian decision. Under this approach, an adjudicator first determines whether the petitioner satisfies at least three of ten enumerated evidentiary criteria. At the second step — the contested 'final merits determination' — USCIS evaluates the totality of the record to determine if the beneficiary possesses the sustained national or international acclaim required by statute. Critically, petitioners who satisfy three, four, or even five criteria can still be denied at this second step. In Mukherji, the court found that USCIS's two-step framework had not been validly adopted through notice-and-comment rulemaking and that its legality was a question of law subject to independent judicial review under the post-Loper Bright framework. USCIS initially appealed but withdrew, leaving the ruling without binding appellate precedent. Agarwal took the opposite approach, relying on the Fifth Circuit's pre-Loper Bright decision in Amin v. Mayorkas to characterize the final merits step as a permissible means of evaluating whether a petitioner satisfies the statute's ultimate eligibility requirements, not an unlawful extra-regulatory hurdle. The broader implication of this conflict extends beyond EB-1A petitioners. The disagreement touches on how much interpretive latitude federal agencies retain following Loper Bright Enterprises v. Raimondo, which eliminated Chevron deference. If courts must independently assess whether agency frameworks comport with statutory text, USCIS's reliance on policy-driven adjudicatory steps — including in other employment-based categories — may face heightened scrutiny. Practitioners and EB-3 petitioners alike should monitor how the Eighth Circuit ultimately resolves this split if it reaches the appellate level.