The Final Merits Determination in EB‑1A Cases, Explained

The final merits determination allows U.S. Citizenship and Immigration Services (USCIS) to check whether an applicant truly qualifies for an EB-1A Green Card. For those looking to enter the U.S. under the extraordinary ability immigrant category, understanding the nuances around this step in the adjudicating process can help strengthen their case.

How does the final merits determination work?

USCIS reviews EB-1A petitions using a two-step process, often called the Kazarian framework, that separates the initial evidence requirements from a review of the record as a whole.

• Step 1: The officer checks whether you meet at least three of the ten regulatory criteria or qualify with a one-time major, internationally recognized award.
• Step 2: The officer then looks at all your evidence together in what's called the final merits determination.

At this stage, USCIS decides whether you've shown sustained national or international acclaim and that you are among the small percentage at the very top of your field. Meeting three criteria alone is not enough, as you must prove you truly qualify as extraordinary.

Evan J. Law, a Manifest immigration attorney and former officer of USCIS's Administrative Appeals Office (AAO), describes a concern that preceded the framework: "Prior to Kazarian, there was an underlying view that some of the EB-1A criteria could be met, and yet somebody would still not be at the level of a claim that USCIS felt like they should be to meet the EB-1 classification."

Why does the Kazarian framework exist?

After Kazarian, USCIS adopted the two-step approach nationwide through policy guidance, first in a 2010 policy memo and now in its Policy Manual. That route, guidance instead of formal rulemaking, is what the Mukherji court found unlawful. In *Kazarian v. USCIS*, a landmark case that reached the Ninth Circuit U.S. Court of Appeals, Armenian theoretical physicist Poghos Kazarian challenged the denial of his EB-1A petition.

In its decision, the Ninth Circuit upheld the denial because Kazarian had established only two of the required three types of evidence, but it found errors in how USCIS and the AAO evaluated his petition. The court explained that USCIS could not add requirements beyond those in the regulations, such as requiring citations to satisfy the scholarly-articles criterion; those considerations might instead be relevant to a final merits determination.

USCIS's Policy Manual now directs officers to use this two-step approach: first checking the evidence against the criteria, then considering the petition as a whole.

How can the final merits determination help your EB-1A case?

The final merits determination can help an applicant whose evidence may be stronger in some areas than in others, because USCIS considers how the evidence fits together. For example, evidence that carries limited weight on its own may become more persuasive when viewed alongside other achievements.

USCIS recognizes that "extraordinary ability" may not look the same across all careers, and its guidance allows officers to consider relevant evidence even when it does not fit a listed criterion. That does not remove the initial evidence requirements: if the listed criteria do not readily apply to an occupation, comparable evidence must meet the separate rules for that first step.

What does USCIS look for during the final merits determination?

USCIS looks for a record that, taken as a whole, shows sustained national or international acclaim and recognition of your achievements at the very top of your field. Manifest attorney Law, who spent seven years reviewing EB-1A, EB-2, and EB-3 petitions at the AAO, describes the importance of viewing each case in context: "When I was adjudicating cases, I tried to take a very comprehensive view of the case overall, since every case has a different proportionality in expertise as well as acclaim," he says.

Law notes that there are instances where a reviewing official can home in on the weaker part of a person's presented evidence and issue either a denial notice or request for evidence. "What happens, in my view, is that officers get used to seeing so many accolades," he says. "You could compare it to professional sports teams in the NBA or NFL. If they're playing against really good defenses, they may not look like they're as good of an offensive player. But these are all professionals."

That concern does not make final merits a second checklist: USCIS directs officers to consider all relevant evidence together, including evidence outside the listed criteria. USCIS guidance tells officers not to impose evidentiary requirements beyond those in the regulations, and to weigh all relevant evidence together.

For that reason, Law stresses that applicants need to clearly explain how their full body of work meets the EB-1A standard. Rather than leaving the officer to connect the dots, applicants should show how their achievements collectively establish top-tier standing in their field.

"It's worth going through all of the details that you can, because the final merits evaluation is a place where a lot of hang-ups can happen if you just leave it to the officer to figure it out," he notes. "Some officers may be able to do that fine, but oftentimes it's best to walk them through how your entire evidence establishes all of the aspects of the final merits."

Law also emphasizes clarifying the field of expertise and ensuring support letters tell a consistent story. For the petition, that means explaining what the work accomplished, who recognized it, and why that recognition matters. Specific examples and supporting records give an officer more to assess than praise alone.

Why does USCIS deny EB-1A petitions at the final merits stage?

USCIS may deny a petition at the final merits stage when the evidence as a whole does not establish sustained acclaim and standing at the very top of the field.

Below are a few examples of common reasons why EB-1A petitions get denied or requests for evidence (RFEs) during the Kazarian evaluation:

• Documenting accomplishments without explaining their significance. Rather than assuming the officer will understand their importance, explain who recognized the work and what the supporting evidence shows about your standing.
• Lacking proof that your acclaim has been sustained. Evidence should show how your recognition has evolved over time, rather than simply listing recent or older achievements.
• Submitting recommendation letters that only offer broad praise. Vague or conflicting descriptions of your work can make your field harder to assess.

Passing the final merits determination takes careful legal strategy. If you're concerned about the strength of your petition as a whole, request a consultation with Manifest's EB-1 lawyers for an honest evaluation.

Final merits determination FAQs

How should I respond to an RFE based on the final merits determination?

If you receive a final merits RFE, consult an experienced immigration attorney promptly about how to address the officer's stated concerns. An EB-1A request for evidence is an opportunity to provide requested information before USCIS decides the petition.

Does meeting three criteria guarantee approval for EB-1A?

Meeting three criteria does not guarantee approval for EB-1A. Even if you meet the initial evidence requirements, an immigration officer may deny your petition during the final merits determination.

How does USCIS define being at the top of your field?

USCIS applies a regulation that defines extraordinary ability as "a level of expertise indicating that the person is one of that small percentage who have risen to the very top of the field of endeavor."

What is the difference between regulatory criteria and final merits?

Regulatory criteria are the specific evidentiary categories listed in the EB-1A regulations, while the final merits determination is the review of the evidence as a whole. Meeting the initial requirements gets you through the door; the final merits determination assesses whether the full record demonstrates extraordinary ability.

Can I get a Notice of Intent to Deny (NOID) on final merits, and how should I respond?

USCIS may issue a NOID if your EB-1A application does not pass the final merits evaluation. If you're in this situation, an attorney can help you address each concern through an explanation and supporting evidence.