USCIS Withdraws Mukherji Appeal: 2026 Update on EB-1A Adjudication Authority

USCIS has withdrawn its appeal in Mukherji v. Miller, a case in which a Nebraska federal district court overturned an EB-1A extraordinary ability denial. The court had found that USCIS's use of a two-step 'final merits determination' framework lacked proper grounding in statute or regulation, relying on Loper Bright principles that limit deference to agency-created adjudicatory structures not expressly adopted through notice-and-comment rulemaking. Despite the withdrawal, the practical impact on EB-1A adjudications is limited. The district court's ruling is binding only on that individual case and does not establish binding appellate precedent. USCIS has not rescinded its broader Kazarian-based adjudicatory framework and is expected to continue holistic evaluations of extraordinary ability petitions, including denying cases even where petitioners satisfy three or more of the ten regulatory criteria. The strategic significance of USCIS's withdrawal lies in what it avoided: an Eighth Circuit ruling—from a conservative court—that could have broadly curtailed the agency's authority to impose adjudicatory standards untethered from regulatory text. By dropping the appeal, USCIS preserved flexibility while preventing a precedential decision that could be cited in future litigation nationwide. For practitioners and petitioners, Mukherji adds a litigation tool in cases where USCIS appears to impose expectations beyond the regulatory framework. It signals that courts in the post-Loper Bright era may increasingly scrutinize immigration agency authority, even in conservative circuits. The final merits determination policy remains vulnerable to challenge in any federal jurisdiction. Whether Mukherji proves to be an isolated ruling or the start of broader judicial reassessment of USCIS extraordinary ability adjudications remains uncertain. However, the unresolved tension between agency discretion and statutory limits will continue to shape EB-1A and EB-1B litigation in 2026.