301.823.6670 | TK@KennedyVisas.com

 USCIS decides EB-1A petitions in two steps. 

• In the first, the officer determines which regulatory criteria the evidence objectively meets. In the second, the officer evaluates the record as a whole to decide whether the person has sustained national or international acclaim and is among the small percentage at the top of the field. That second step is called the final merits determination, and it is where most well-credentialed applicants lose.
• A petition can satisfy three criteria, or six, and still be denied at the final merits stage. USCIS has said that a voluminous record may fail to contain persuasive evidence, that letters of support should not be the cornerstone of the case, that a patent or publication shows originality without showing major significance, and that a title alone does not establish a leading or critical role. 
• Kennedy Law builds every EB-1A petition for the second step from the outset, selecting the criteria the record actually supports rather than claiming every criterion that can be argued, and explaining the significance of each piece of evidence rather than leaving the officer to infer it.

In January 2026, a federal district court in Nebraska held in Mukherji v. Miller that USCIS adopted the final merits step without the rulemaking required by the Administrative Procedure Act. USCIS appealed and then withdrew its appeal in June 2026, leaving the ruling intact for that petitioner. A district court decision binds only the parties in the case before it. It does not strike the final merits step from the Policy Manual, it does not require USCIS to change how it decides other petitions, and it does not bind any other court. USCIS continues to apply the final merits step to every petition it decides, and a petition filed today is still built to win both steps.

• What the decision provides is a litigation option. A petitioner denied at the final merits stage after USCIS has conceded three or more criteria can bring the same challenge in federal court, where the Nebraska decision is persuasive authority a judge may follow. That is the ordinary shape of a challenge to an agency rule that was never put through public notice and comment. Each petitioner denied under the framework has to bring their own action, and each district judge decides independently whether to follow Mukherji, distinguish it, or side with the Fifth Circuit's 2022 decision in Amin v. Mayorkas, which upheld the framework before the Supreme Court narrowed judicial deference to agencies in 2024. Until a circuit court rules or DHS runs a notice-and-comment rulemaking, the framework stays in the Policy Manual and officers keep applying it.
• Two things could change that. A second district court, or a circuit court, could follow Mukherji, and a pattern of losses would eventually force the agency's hand. Alternatively, DHS could publish a rule codifying the final merits determination, which would cure the procedural defect and leave only the substantive question of whether the statute permits a second step at all. Neither has happened. Kennedy Law can explain what the litigation option is worth for a particular record.

Most EB-1A guidance is written for the academic researcher, whose case is measured in publications and citations. Kennedy Law's EB-1A practice began with artists and has centered on professionals whose achievements have to be documented from the work itself.

• Engineers and technical professionals. The evidence is in what was built and what became of it: patents and their commercialization or adoption, systems in production, conference presentations that were invited rather than submitted, technical committee and judging roles, and the critical role in specific product outcomes. Kennedy Law develops that record by tracing implementation and impact rather than by describing the invention.
• Executives and business leaders. Leading and critical roles at organizations with a distinguished reputation, high remuneration relative to the field, original business contributions of major significance, and recognition in trade and business media. The petition has to show what the person did and what it meant to the organization's outcomes, because USCIS does not accept the title as proof of the role.
• Physicians and healthcare professionals. Clinical innovation, leadership at distinguished institutions, peer-reviewed authorship, editorial and review roles, and recognition by professional bodies. Where a physician's record is clinical rather than research-based, the case is built on the significance of the clinical work and the standing of the institutions.
• Artists and performers. Awards, critical coverage in major media, distinguished productions and venues, commercial success where the field measures it, and critical roles in organizations of distinguished reputation. Kennedy Law's first EB-1A cases were for score composers and an opera singer, and the method developed there applies across the arts.
• Researchers and academics. Publications in highly ranked journals, citation record relative to the field, peer review, invited presentations, and competitively funded research. Kennedy Law handles these cases as well, and treats the citation record as evidence to be explained rather than as a substitute for the final merits argument.

• A person with no scholarly publications can qualify for EB-1A. The regulation lists ten criteria and requires three; authorship is one of them, and the other nine do not depend on it. USCIS also permits comparable evidence where a criterion does not readily apply to a person's occupation, and has given the example of a presentation at a major trade show as comparable to scholarly authorship for a person in industry.
• The work in these cases is locating and developing the objective evidence that shows what the person did, the authority exercised, how the work was implemented, and what measurable significance it had. That is more demanding than assembling a citation report, and it is the work Kennedy Law's practice is structured around.

• A denied EB-1A petition does not prevent a new one. Each petition is adjudicated on its own record, and a new petition can be built to address what the first one lacked. The first step is a candid reading of the denial: which criteria were accepted, which were rejected and why, and whether the petition failed at the criteria stage or at final merits. The answer determines whether the record can support a stronger EB-1A, whether EB-2 NIW is the better route, or whether another classification fits.
• Kennedy Law offers a document review consultation for prospective clients with a prior denial, credited toward the legal fee if Kennedy Law is retained. Where Kennedy Law prepares and files a petition that is denied, one complimentary refiling is included, subject to the conditions stated on the fee page.

•  Many applicants with a credible EB-1A case also qualify for the EB-2 National Interest Waiver, which asks a different question of the same record. Filing both produces two independent paths to approval and a single priority date preserved by whichever petition is approved first. Kennedy Law recommends a concurrent filing where the applicant meets the EB-2 threshold and the record supports at least three EB-1A criteria, and explains how the two classifications compare and when both should be filed on the comparison page. 

• Kennedy Law offers a free preliminary qualification evaluation for EB-1A and EB-2 NIW.  To begin, email TK@KennedyVisas.com and request the evaluation questionnaire, or send a background summary, a CV, and a description of your key achievements. Please do not send confidential material before a conflicts check and engagement agreement are complete.
• Strong candidates include researchers with a publication and citation record, and equally professionals in engineering, business, healthcare, and the arts whose work has been adopted, implemented, or recognized in ways that a citation count does not capture. Where a preliminary evaluation is positive, a written assessment is available for $600, credited in full toward the legal fee if Kennedy Law is retained.