TL;DR: A federal judge in Nebraska just smacked down a USCIS EB-1A denial, said the agency’s extra “final merits” hurdle was adopted the wrong way, and ordered USCIS to approve the petition on remand. If you are getting denied after “meeting 3+ criteria,” this case is worth knowing, even if it does not directly affect other cases unless they are litigated in a similar fashion. Read the full decision here.
What happened
- The petitioner (a journalist) filed an EB-1A I-140.
- USCIS agreed she met 5 out of the 10 regulatory criteria (only 3 are required).
- USCIS still denied at the “final merits determination,” basically saying: sure, you were impressive, but you did not prove sustained acclaim after 2015.
What the court did (and why people are talking about it)
The court said USCIS’s two-step framework is on shaky legal ground USCIS has been using the Kazarian-style “two-step” review:
- Step 1: check if you meet at least 3 criteria (or a major one-time award).
- Step 2: “final merits determination” to decide if you are really at the very top with sustained national or international acclaim.
The judge’s point: USCIS rolled out that second step nationwide through memos, not through proper notice-and-comment rulemaking under the APA, and did not seriously acknowledge it was changing a long-standing approach.
The court also called the denial arbitrary and capricious Even putting the two-step fight aside, the judge criticized how the officer wrote the denial:
- The denial leaned heavily on “no awards or major press about you since 2015.”
- The court said the statute does not say you must “stay indefinitely” at the top of your field, or constantly collect new awards forever.
- The court also pointed to the lack of a clear, articulated standard for why the evidence was supposedly not enough.
Bottom line outcome
- The court vacated the denial.
- It remanded with instructions to approve the petition (not just “re-decide it”).
Why this matters to EB-1A petitioners (practical takeaways)
- “Met 3 criteria” should not turn into “prove whatever we feel like”. If an officer piles on an extra, undefined “excellence” or “top of the field” requirement without explaining what standard they are applying and why your evidence fails it, that is exactly the kind of thing courts can flag under the APA.
- If your big awards/press were earlier, you are not automatically dead. This decision pushes back on the common USCIS move: “Most of your acclaim is from years ago, therefore not sustained.” That does not mean “do not show recent work.” It means: if your impact continues (citations, industry adoption, audience reach, leadership roles, continued invitations, continued media referencing your work, continued high-level assignments), argue that sustained acclaim can show up in ways other than fresh trophies every year.
- Attack vague denials If you get language like “insufficient to show you are at the very top” with no concrete reasoning, push for specifics:
- What evidence did they discount?
- What objective benchmark are they using?
- How did they weigh the record under preponderance of the evidence?
Litigation angle. This is a district court decision (not a Supreme Court ruling, not a circuit precedent for everyone), so USCIS will not suddenly stop using the two-step process tomorrow. But it can be persuasive ammo in:
- Motions to reopen/reconsider
- Federal court APA complaints
- Briefing when a denial feels like shifting goalposts
Caveats (so nobody overreads this)
- This is one federal district court. It’s persuasive, not automatically binding nationwide.
- USCIS may appeal or try to cabin the ruling.
- You still want a strong EB-1A record. The “3 criteria” step has never been a guarantee of approval in real life, even before this case. Your job is to make the total record hard to hand-wave.