A federal judge in Nebraska has upheld U.S. Citizenship and Immigration Services’ (USCIS) two-step review process for EB-1A extraordinary ability green card petitions. The ruling, issued in Agarwal v. Miller, confirms that USCIS can apply a second, higher level of scrutiny even after a petitioner meets the basic evidentiary requirements. This decision affects scientists, researchers, business professionals, athletes, and artists who are applying, or plan to apply, for an EB-1A green card based on extraordinary ability. If you have a pending EB-1A case or are considering filing one, it is a good time to review your evidence with a qualified immigration attorney.
Background: What This Means
The EB-1A category allows people with “extraordinary ability” in the sciences, arts, education, business, or athletics to self-petition for a green card without a job offer. Under long-standing USCIS regulations and the Ninth Circuit’s decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), USCIS reviews these petitions in two steps:
- Step one: The petitioner must show that the evidence meets at least three of ten regulatory criteria (such as awards, published material about the person, or a high salary), or provide evidence of a single major, internationally recognized achievement.
- Step two: USCIS then conducts a “final merits determination.” The agency looks at the evidence as a whole to decide whether the person has truly reached sustained national or international acclaim and is among the small percentage who have risen to the very top of their field.
In Agarwal v. Miller, the petitioner argued that this second step is unlawful because it allows USCIS to deny a case even after the petitioner satisfies three or more criteria. The federal court in Nebraska disagreed, finding that the two-step framework is consistent with the governing regulation, 8 C.F.R. § 204.5(h), and with USCIS’s published guidance in the USCIS Policy Manual, Volume 6, Part F. As of October 25, 2026, this ruling stands as persuasive authority supporting USCIS’s current adjudication practice nationwide, although it is not binding outside the District of Nebraska.
How This Affects EB-1A Applicants and Petitioners
This ruling confirms that meeting three of the ten regulatory criteria is only the starting point, not the end, of an EB-1A case. USCIS officers may still deny a petition at the final merits stage if the overall record does not show that the person is at the very top of their field. This affects several groups:
- Researchers and academics who rely on publications and citations may need stronger evidence connecting their work to broader recognition in their field.
- Entrepreneurs and business professionals should expect USCIS to look closely at revenue, media coverage, and industry recognition, not just job titles.
- Artists and athletes may need to show awards or critical reviews that carry national or international, not just local, significance.
- Petitioners with pending or future denials based on the final merits step may have limited options to challenge the decision in federal court, since this ruling supports USCIS’s current approach.
People who are considering an EB-1A filing, or who have an EB-1 case pending, may also want to compare their options under the related EB-2 and national interest waiver category, which has a different standard and may fit some professional backgrounds better.
What You Should Do Now
If you are preparing an EB-1A petition or have one pending, consider the following steps:
- Review your evidence as a whole. Do not simply count criteria met. Ask whether the full record tells a clear story of sustained acclaim at a national or international level.
- Gather independent evidence of recognition. Letters from people who have worked directly with you carry less weight than independent evidence such as media coverage, citation data, or awards from outside organizations.
- Check your timing. If you have a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) related to the final merits step, respond carefully and address the agency’s specific concerns.
- Consider alternate categories. If your case does not clearly meet the extraordinary ability standard, review whether an employment-based visa such as EB-2, EB-3, or an H-1B may better fit your situation.
- Consult an attorney before filing or appealing. Because this is a developing area of law, speak with an immigration attorney before you file a new petition, respond to an RFE, or decide whether to challenge a denial in federal court.
How TEZ Law Firm Can Help
TEZ Law Firm helps individuals prepare and file EB-1A and other EB-1 extraordinary ability green card petitions, review USCIS Requests for Evidence and denials, and compare options across employment-based immigration categories. The firm can review your evidence, help you organize supporting documentation, and discuss whether your case may be better suited for a different visa classification. For a broader view of available options, you can also review TEZ Law Firm’s immigration law services.
Frequently Asked Questions
What did the court decide in Agarwal v. Miller?
A federal judge in Nebraska ruled that USCIS’s two-step review process for EB-1A petitions is lawful. This means USCIS can still deny a petition at the final merits stage even if the petitioner meets three or more of the ten regulatory criteria.
Does this ruling apply across the entire United States?
The decision was issued by a federal district court in Nebraska, so it is binding only in that district. However, it may be viewed by USCIS and other courts as support for the agency’s current nationwide adjudication practice, as of October 25, 2026.
What is the “final merits determination” in an EB-1A case?
It is the second step of USCIS’s review. After confirming that a petitioner meets at least three regulatory criteria, USCIS looks at all the evidence together to decide whether the person has sustained national or international acclaim and is among the small percentage at the top of their field.
Can I still get an EB-1A green card after this ruling?
Yes, people can still apply for and receive EB-1A green cards. This ruling does not change the standard; it confirms that USCIS may continue to apply both steps of its existing review process.
What if my EB-1A petition was denied based on the final merits step?
Options may include filing a motion to reopen or reconsider with USCIS, refiling with stronger evidence, or exploring other visa categories such as EB-2 or EB-3. An immigration attorney can review your denial notice and discuss which option may fit your circumstances.
If you have questions about an EB-1A petition, a pending RFE, or another employment-based immigration matter, you can contact TEZ Law Firm to schedule a consultation. The firm’s managing attorney, JJ Zhang (California Bar #326666), and the team serve clients nationwide from offices in West Covina, City of Industry, Newport Beach, and Flushing, New York. Visit TEZ Law Firm’s contact page to get started.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Laws and agency practices change; contact TEZ Law Firm (West Covina, California) at 626-888-6856 or [email protected] about your situation. Prior results do not guarantee a similar outcome.