Nebraska Judge Upholds USCIS’s EB-1A ‘Final Merits’ Test, Leaving Two Rulings From the Same Court in Direct Conflict

Chief Judge Brian C. Buescher has upheld the second step of USCIS’s EB-1A review, eight months after a colleague on the same court struck it down. With no appellate ruling on the books, an extraordinary ability lawsuit in Nebraska can now turn on which judge draws it.

A federal judge in Nebraska has thrown out a challenge to the “final merits determination,” the step U.S. Citizenship and Immigration Services uses to deny EB-1A extraordinary ability petitions even after agreeing the applicant meets at least three of the regulation’s ten criteria. In Agarwal v. Miller, decided Sept. 25, 2026, Chief Judge Brian C. Buescher held the two-step framework lawful and dismissed the case with prejudice, directly contradicting Senior Judge Joseph F. Bataillon’s January ruling in Mukherji v. Miller on the same court. Both suits named the director of USCIS’s Nebraska Service Center, so the conflict lands on self-petitioners whose Form I-140 cases are decided there and on anyone deciding whether a Step 2 denial is worth taking to court.

Prakhar Agarwal’s two petitions were denied on July 17, 2025, and Jan. 15, 2026. Each time USCIS conceded he met at least three criteria under 8 C.F.R. 204.5(h)(3), then found he had not shown he was among the small percentage at the very top of his field. His suit attacked the step itself, not how it was applied to him.

One 2010 memo, two irreconcilable readings

The dispute centers on a December 2010 policy memorandum issued after the Ninth Circuit’s decision in Kazarian v. USCIS, telling officers to count the qualifying criteria first and then weigh all the evidence together. It never went through notice-and-comment rulemaking, and the USCIS Policy Manual still prescribes both steps (current as of Oct. 2, 2026).

Judge Bataillon treated the memo as a substantive change to the 1991 regulation that required notice and comment, citing a 1995 proposed rule in which the agency itself had treated a similar framework as substantive. He also found USCIS never acknowledged or explained its change of position and, deciding the legal question without deference under the Supreme Court’s 2024 Loper Bright decision, ordered the petition approved. USCIS had conceded that petitioner met five criteria.

Judge Buescher, also claiming his own independent judgment, read the same texts the opposite way. The first step mirrors the statute’s call for “extensive documentation”; the second mirrors its core demand for sustained national or international acclaim. A memo that adds nothing to the statute or regulation is an interpretive rule, he held, exempt from notice and comment, and its stated goals of clearer, more consistent decisions would justify any change. He called Mukherji unsound and unconvincing, siding with the Fifth Circuit’s 2022 decision in Amin v. Mayorkas and his own rulings in Etsy, Inc. v. Jaddou (2023).

Petitioners did win one point. The government argued that any procedural attack on a 2010 memo was long time-barred. Applying the Supreme Court’s 2024 Corner Post decision, Judge Buescher held that the six-year clock starts when a denial injures the petitioner, so a challenge tied to a recent denial is timely. It simply lost on the merits.

The appeal the government dropped

The government appealed Mukherji to the Eighth Circuit in March. On June 10, 2026, the day its opening brief was due, it moved to dismiss its own appeal, and the court granted the motion that afternoon, the Eighth Circuit docket shows. The approval stood, and the circuit was left without precedent.

That is why, in our analysis, Agarwal may matter more than a routine dismissal. Because the dismissal is with prejudice, Mr. Agarwal can appeal, and with the United States a party, the federal appellate rules give him 60 days from entry of judgment. An appeal would put the question the government walked away from before the Eighth Circuit, this time on a record the government won. A ruling there would bind district courts in seven states, and one rejecting Amin would create a circuit split of the kind the Supreme Court tends to notice.

Denials now outnumber approvals

USCIS’s own figures show why Step 2 has become the main battleground. EB-1A denials have exceeded approvals for three straight quarters, and pending petitions rose from 21,157 at the end of September 2025 to 28,874 at the end of June 2026. USCIS does not report which step a denial rests on, so the data cannot show how many turned on final merits.

The ruling also holds a pleading lesson. Mr. Agarwal argued that his individual denials were wrong even if the policy survived, but the court found the complaint never pleaded facts showing he qualified apart from his objection to Step 2, so the whole case fell with the policy challenge. In Mukherji, by contrast, the court also faulted the officer’s reasoning as applied, an alternative ground independent of the rulemaking question.

A question many petitioners are asking

USCIS denied my EB-1A at final merits after conceding three criteria. Does Mukherji v. Miller require it to approve my I-140?

No. A district court judgment binds only the parties to that case, and the withdrawn appeal produced no Eighth Circuit precedent. The USCIS Policy Manual still directs officers to apply the final merits step, and on the same court Judge Buescher has now upheld the framework three times, consistent with the Fifth Circuit’s Amin decision. Mukherji is an argument a petitioner can raise in a lawsuit, not a rule USCIS must follow.

This article is for general information and is not legal advice.

Sources

• Agarwal v. Miller, No. 4:26CV3049 (D. Neb. Sept. 25, 2026), memorandum and order
• Mukherji v. Miller, No. 4:24-cv-03170 (D. Neb. Jan. 28, 2026), memorandum and order
• Mukherji v. Miller, No. 26-1578 (8th Cir.), docket showing the government’s June 10, 2026 motion to dismiss and judgment
• USCIS Policy Manual, Volume 6, Part F, Chapter 2, Extraordinary Ability (current as of Oct. 2, 2026)
• USCIS, Form I-140 by Fiscal Year, Quarter and Case Status, FY2026 Q3 (April-June 2026)
• USCIS, Form I-140 by Fiscal Year, Quarter and Case Status, FY2025 Q4 (October 2024-September 2025)
• 8 C.F.R. 204.5(h), extraordinary ability criteria

About the Author

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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