Nebraska Judge Upholds EB‑1A Final Merits Test

The final merits determination, the last step in the process for an initial EB-1A I-140 petition, has been the subject of several recent court cases challenging its legality. In January, a federal judge in Nebraska ruled that USCIS unlawfully adopted it.

But last month, a federal judge in the same district came to the opposite conclusion in a different case: U.S. Citizenship and Immigration Services (USCIS) lawfully uses the final merits determination to decide EB-1A cases.

In Agarwal v. Miller, plaintiff Prakhar Agarwal argued two claims: that the final merits test has no basis in the federal regulations and that the government adopted it without following the formal rulemaking process. Chief Judge Brian C. Buescher rejected both arguments, ruling that the totality-of-the-evidence review matches the law’s requirement of sustained acclaim.

He also found that the 2010 USCIS policy memo that established the final merits determination was an interpretive rule, which does not require notice and comment.

Agarwal ruling breaks with Mukherji on the final merits step

Judge Buescher’s decision directly conflicts with an earlier ruling from the same court. In January, Senior Judge Joseph F. Bataillon reached the opposite conclusion in Mukherji v. Miller, which found that USCIS unlawfully adopted the final merits framework.

Agarwal’s case relied heavily on Mukherji, citing Bataillon’s decision as one reason the two-step test is unlawful. Judge Buescher declined to follow it, calling the decision "unsound and unconvincing" in his decision.

Manifest immigration attorney Ana Gabriela Urizar says this is possible because one district judge's ruling does not bind another, even within the same district. “Only a decision from the Eighth Circuit or the Supreme Court would bind Judge Buescher,” she says. “The government appealed the decision on Mukherji but dropped its appeal in June, so the Eighth Circuit never ruled on the question.”

Other courts have also upheld the final merits step

Agarwal is one of several recent rulings to side with USCIS. Other court cases that have sided with USCIS include:

• Sesham v. Miller: On Sept. 14, Judge Buescher rejected the same statutory and notice-and-comment arguments and dismissed the case with prejudice.
• Rakhmatullin v. Miller: On Sept. 29, Buescher also described the complaint as essentially identical to those in Sesham and Agarwal.
• Branski v. Brennan Seng: On Aug. 19, a federal magistrate judge in Wisconsin found the petitioner had not shown that the final merits step exceeds USCIS's legal authority.

Attorneys advise building EB-1A cases for final merits review

For EB-1A applicants, Urizar says the working assumption should be that USCIS keeps applying the two-step analysis.

"Assume USCIS will continue applying Step 2 and that meeting three of the ten regulatory criteria will not by itself carry a petition," she said. "That means building every EB-1A for the final merits analysis from the start, and an attorney can help you accomplish that."

This is a developing story. We’ll continue to update this article as more information gets released.