USCIS has withdrawn its appeal in the Mukherji v. Miller case — and that changes the landscape.
The U.S. District Court for the District of Nebraska concluded that the “final merits determination” — the second step that USCIS added to the Kazarian framework and has been applying since 2010 when evaluating EB-1A petitions — was adopted through internal guidance without undergoing the notice-and-comment process required under the Administrative Procedure Act (APA).
Importantly, the decision did not invalidate the Kazarian framework itself; it only challenged this second step.
What Does This Mean in Practice?
✅ The decision is a strong persuasive authority, but it is not binding nationwide. Because it was issued by a federal district court rather than a federal appellate court or the U.S. Supreme Court, USCIS has not revised its Policy Manual, and adjudicating officers are likely to continue applying the two-step framework until a formal policy change is implemented.
✅ Individuals whose EB-1A I-140 petition was denied at the “final merits” stage may have grounds to challenge that decision. In general, however, APA claims are subject to a statute of limitations (typically six years from the date of the denial), meaning older denials may already be time-barred. The same reasoning may also provide a basis for arguments in EB-1B cases, although the court’s decision specifically addressed EB-1A petitions.
✅ Challenges are typically brought in federal court under the APA, but filing deadlines, jurisdiction (venue), and the most appropriate strategy—whether refiling, pursuing an administrative appeal, or initiating litigation—vary depending on the specific facts of each case and are highly time-sensitive.
If you or someone you know may have been affected by this development, now is the time to seek experienced legal guidance.
Our team is closely monitoring these developments. Contact us to determine whether your case may be eligible for review.
Written by Chris Costa, Associate Attorney at Drummond Advisors