The Final Merits Determination, Explained

The final merits determination allows a U.S. Citizenship and Immigration Services (USCIS) officer 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 category, understanding the nuances around this step in the adjudicating process can help strengthen their case.

What is the final merits determination?

The final merits determination allows USCIS to make a decision on the strength of your EB-1A case as a whole. Think of it as a gut-check from an immigration officer, on whether you’ve truly risen to the top of your field.

For individuals seeking a Green Card under the extraordinary ability category, understanding how officers weigh evidence at this stage can significantly improve the strength and strategy of a petition.

When a final merits determination happens

When reviewing an EB-1A petition, USCIS first evaluates whether you meet at least three of the ten regulatory criteria (or qualify based on a one-time major award). 

If you satisfy this threshold step, the officer then conducts a final merits determination, weighing all the evidence to decide whether you have demonstrated sustained national or international acclaim and are among the small percentage at the top of your field. For most cases, this is the final stage before a decision is issued.

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

In some cases, the final merits determination may help an applicant whose evidence may be stronger in some areas than in others. For example, an officer may approve a case where a person’s influence in the industry outweighs the judging opportunities they presented.

USCIS recognizes that “extraordinary ability” may not look the same across all careers. This is especially true for those in athletic, creative, or emerging fields, as their accomplishments may not fit neatly into the strict EB-1A requirements. If presented well, the final merits requirement can help an adjudicating officer rule favorably.

How the final merits determination works

USCIS reviews EB-1A petitions using a two-step process, often called the Kazarian framework (based on a federal court case).

• Step 1: The officer checks whether you meet at least three of the 10 regulatory criteria (or qualify with a one-time major 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. In other words, meeting three criteria alone is not enough—you must also prove you truly qualify for as extraordinary.

Even before the Kazarian framework existed, USCIS planned for years to implement a final merits evaluation. According to Manifest immigration attorney and ex-USCIS officer Evan Law, “prior to Kazerian, 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 the Kazarian framework exists

USCIS established the Kazarian framework after Kazarian v. USCIS, a landmark case that made it to the U.S. Court of Appeals. In 2005, the federal agency denied the EB-1A petition of Poghos Kazarian, an Armenian theoretical physicist interested in working in the U.S. The initial denial claimed that while he met the evidentiary requirements, they were not impressive or substantive enough to be considered for the “extraordinary ability” category.

After receiving the initial denial, Kazarian filed an appeal with the Administrative Appeals Office (AAO) of USCIS. Since the AAO did not rule favorably, he filed a complaint with the District Court of California. This case made it all the way to the Ninth Circuit U.S. Court of Appeals, which ultimately ruled on the case on Sept. 4, 2009.

In their decision, the Ninth Circuit did not condemn the denial as made by USCIS. Instead, the court ruled that the initial criteria for the EB-1A allow for different degrees of interpretation. The decision also notes that evidence must be weighted against the overall requirement that an EB-1A holder must prove sustained acclaim and extraordinary ability.

This allowed USCIS to build the final merits determination into their policy manual. Since then, the Kazarian framework has remained the standard way that immigration officers adjudicate EB-1A cases.

What USCIS looks for during the final merits determination process

Law, who spent seven years reviewing EB-1A, EB-2, and EB-3 petitions at the AAO, says that, immigration officers are deciding on whether the presented evidence can be truly called impressive during the final merits determination. “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.

Due to the subjective nature of the final merits determination, Law notes that there are instances where a reviewing official can hone 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.”

For that reason, Law emphasizes the importance of clearly explaining how the full body of evidence meets the EB-1A standard. Rather than leaving it to the officer to connect the dots, applicants should demonstrate 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.”

Get support preparing your EB-1A for final merits determination. With the help of Manifest’s immigration attorneys, you can build a clear timeline around your accomplishments and show you truly qualify for an extraordinary ability Green Card. Request a consultation to begin today.

Final merits determination FAQs

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

If you receive a final merits RFE, consult an experienced immigration attorney immediately. These RFEs signal that USCIS is not yet convinced your record shows sustained acclaim or top-of-the-field standing.

A strong response must do more than add documents. It should directly address the officer’s concerns, clearly explain the significance and impact of your achievements, and connect all evidence to show you meet the “small percentage at the very top of the field” standard for EB-1A.

Does meeting the 3 criteria guarantee approval for EB-1A?

No. Even if you meet the minimum requirements for an EB-1A Green Card, an immigration officer may deny your petition during the final merits determination if they feel your evidence as a whole doesn’t show you are at the top of your field or have sustained acclaim.

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

USCIS does not define “top of the field” explicitly. Instead, the federal agency defines extraordinary ability as someone within the “small percentage who have risen to the very top of the field of endeavor.”

In practice, officers assess this through the two-step framework: first evaluating whether the criteria are met, then determining whether the total record shows sustained national or international acclaim.

What is the difference between regulatory criteria and final merits?

Regulatory criteria are the specific evidentiary categories listed in the EB-1A regulations (such as major awards, published material, judging the work of others, or original contributions). An applicant must meet at least three of the ten criteria—or qualify with a one-time major award—to pass the first step of the review.

Final merits determination is the second step. Here, USCIS looks at all the evidence together to decide whether the applicant truly demonstrates sustained national or international acclaim and belongs to the “small percentage” at the very top of their field.

Meeting the regulatory criteria gets you through the door, final determination merits determines whether you qualify.