EB-1A (Extraordinary Ability) is an immigrant visa category for individuals who can demonstrate extraordinary ability in the sciences, arts, education, business, or athletics. It is designed for individuals who have risen to the very top of their field and whose achievements have been recognized at a national or international level.
One of the key advantages of EB-1A is that it does not require a job offer or employer sponsorship. Applicants may self-petition by filing Form I-140 on their own behalf, making it particularly attractive to professionals who want flexibility and control over their careers and who do not wish to rely on their employer.
In practice, EB-1A is one of the most difficult green card categories to obtain approval in. In the absence of a major internationally recognized award, such as a Nobel Prize or Olympic medal, applicants must meet at least three out of ten regulatory criteria. If an applicant meets at least three criteria, USCIS then conducts a final merits determination to assess whether the applicant is among the small percentage who have risen to the very top of their field. However, a recent court ruling by a Federal judge in the District of Nebraska calls into question whether this final merits determination is proper.
In Mukherji v. Miller, the plaintiff, an Indian national, claimed extraordinary ability as a journalist and argued that USCIS’s denial was arbitrary and capricious (i.e., outside the bounds of reasoned decision-making), particularly given that she met five out of the ten EB-1A criteria. Despite meeting five criteria, USCIS concluded that she failed to demonstrate extraordinary ability. The plaintiff argued that USCIS’s final merits determination is not grounded in statute or regulation, but rather was adopted from a court decision (Kazarian) and later implemented by USCIS without proper authority, in violation of the Administrative Procedure Act (APA).
The court agreed, finding that USCIS unlawfully adopted the final merits determination without engaging in the required rulemaking process, including notice-and-comment procedures. As a result, the court vacated the denial and remanded the case to USCIS with instructions to approve the petition.
While this decision is not binding precedent, it offers an important and favorable interpretation of the EB-1A framework. Although it does not fundamentally change the EB-1A process, it provides EB-1A applicants with meaningful support when challenging denials, particularly in cases where the applicant meets at least three of the ten regulatory criteria.
If you have questions about EB-1A, or would like to schedule a consultation to discuss whether you qualify, please contact PSBP Law Partner Chris Prescott at cprescott@psbplaw.com.