In June 2024, the Supreme Court issued Loper Bright Enterprises v. Raimondo, a decision that fundamentally altered how federal courts review agency decisions. For decades, courts were required to defer to agencies like USCIS when interpreting ambiguous immigration statutes—even when judges disagreed with those interpretations. This doctrine, known as Chevron deference, effectively gave agencies the final word on what the law meant.
That era is over. Under Loper Bright, courts now apply their own independent judgment when reviewing agency interpretations of law. As the Supreme Court stated plainly: "Courts may not defer to an agency interpretation of the law simply because a statute is ambiguous." This means federal judges are no longer required to accept USCIS's interpretation of terms like "extraordinary ability" or "sustained national or international acclaim."
The timing of this decision matters. USCIS is currently denying EB-1A petitions at rates estimated between 60-75%, often using standards and interpretations that go beyond what's written in the statute or regulations. Under the old Chevron deference regime, courts might have upheld these interpretations even if they disagreed. In the post-Loper Bright world, courts are free to apply their own understanding of what the law requires.
The high denial rate for EB-1A petitions is real, and we won't minimize that. Many highly qualified professionals are receiving denials that feel arbitrary or inconsistent with the regulatory criteria they've met. This is understandably concerning for anyone considering filing.
However, there's another pattern emerging that's equally important: federal courts are increasingly skeptical of DHS overreach across multiple areas of immigration enforcement. When agencies push beyond their legal authority, courts have been willing to intervene. Here are some recent examples from 2025-2026 that illustrate this trend:
Operation Midway Blitz (Chicago, 2025-2026): DHS charged 32 people with assaulting immigration agents; nearly half dismissed, zero convictions, three grand juries refused to indict.
Operation Metro Surge (Minneapolis, 2025-2026): Assault charges dropped after prosecutors couldn't present evidence; federal judge "deeply disturbed" by AG posting defendants' photos pre-trial.
Rhode Island v. DHS (2025): Federal judge blocked DHS/FEMA from withholding disaster relief funds from sanctuary jurisdictions as "arbitrary and capricious."
Immigration Court Mass Dismissals (2022-2024): Approximately 200,000 deportation cases dismissed because DHS failed to file required Notice to Appear documents timely.
Du v. DHS (2025): Federal judge ordered the government to restore foreign students' legal status after DHS altered it without proper justification.
Detention Conditions Litigation (2025-2026): Federal courts reprimanded DHS for violating detainees' constitutional rights regarding access to legal counsel.
DHS Employment Lawsuit (2025): Federal court granted class certification for fired probationary employees alleging illegal terminations.
Venezuelan TPS Termination (2026): 9th Circuit ruled DHS Secretary exceeded authority in ending Temporary Protected Status for hundreds of thousands of Venezuelans.
Congressional Oversight Blocked (2026): Federal judge blocked DHS from restricting congressional access to immigration detention facilities.
Records Preservation Violation (2025): Court forced DHS to preserve records after agency admitted texts from Secretary and top officials were not saved.
The pattern across these cases is consistent. When DHS actions lack proper justification, violate procedural requirements, or exceed statutory authority, courts—including grand juries, trial juries, and federal judges—are willing to push back. This judicial scrutiny extends beyond criminal enforcement cases into administrative immigration decisions, which is directly relevant to EB-1A adjudications.
On January 28, 2026, a federal district court in Nebraska issued a decision that may fundamentally reshape EB-1A adjudications. The case involved Anahita Mukherji, an accomplished journalist who applied for EB-1A classification based on her work in public interest journalism.
What Happened in the Case
Ms. Mukherji submitted evidence demonstrating that she met five of the ten regulatory criteria listed in 8 C.F.R. § 204.5(h)(3)—well above the required three. USCIS acknowledged this in its decision. However, USCIS still denied her petition at what they call the "final merits determination" stage. The agency's rationale was that while Ms. Mukherji had achieved national acclaim at one point, she had not maintained "sustained national or international acclaim" because most of her major awards and recognition came before 2015.
The federal court reversed the denial and took the extraordinary step of ordering USCIS to approve the petition outright, rather than simply remanding for reconsideration. The court's reasoning included three significant holdings:
First, the court held that USCIS's "final merits determination" framework was never legally adopted. From 1991 to 2010, USCIS used a single-step analysis for EB-1A cases: if you met three of the ten criteria, you qualified. In 2010, following the Ninth Circuit's decision in Kazarian v. USCIS, the agency adopted a two-step process through a policy memorandum. Under this new framework, meeting three criteria was only step one; at step two, USCIS conducts a "final merits determination" to assess whether the totality of evidence shows "sustained national or international acclaim."
The problem, according to the court, is that USCIS never went through the required notice-and-comment rulemaking process under the Administrative Procedure Act to create this second step. The agency had previously classified this type of change as "substantive" (requiring formal rulemaking), but in 2010 simply issued a policy memo implementing the new standard. The court found this violated the APA, making the entire "final merits determination" framework unlawful from its inception.
Second, the court held that even if the change could have been made informally, USCIS failed to justify it properly. Citing the Supreme Court's decision in Encino Motorcars v. Navarro, the court explained that when an agency changes a longstanding policy—as USCIS did after using a single-step analysis for 20 years—it must at minimum acknowledge the change and explain why the new policy is better. USCIS did neither. The court called this failure "arbitrary and capricious."
Third, the court specifically invoked Loper Bright to emphasize that courts must now apply independent judgment to questions of law. The court stated: "The APA thus codifies... that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide 'all relevant questions of law' arising on review of agency action." The court concluded that the legal validity of USCIS's two-step framework was a question of law, not fact, and that under Loper Bright, courts must decide such questions independently without deference to the agency.
What the Court Said About the Merits
Beyond these procedural and legal issues, the court also found that USCIS's actual reasoning in denying Ms. Mukherji was arbitrary. The court noted that she had submitted "substantial documentation of her excellence, including most impressive letters of recommendation touting her high-level contributions in her journalistic specialty," and that "she clearly has a very high level of achievement."
The court found that USCIS failed to articulate any clear standard for what constitutes "sustained" acclaim: "There is no articulated standard, objective, or specific criteria upon which this Court can judge why she did not meet the standards." The court also observed that the statute itself says nothing about requiring someone to remain indefinitely at the top of their field—USCIS appeared to be imposing a requirement not found in the law.
Based on all of this, the court vacated the denial and ordered USCIS to approve Ms. Mukherji's petition.
The Mukherji decision raises fundamental questions about how EB-1A cases should be adjudicated. While the case was decided in the District of Nebraska and isn't automatically binding on other courts, its reasoning is likely to be influential, particularly because it's grounded in recent Supreme Court precedent (Loper Bright) and longstanding administrative law principles.
Here's what we're seeing as the new legal landscape:
The "Final Merits Determination" May Lack Legal Force. If USCIS never properly adopted the two-step framework through formal rulemaking, then the "final merits determination" that serves as the basis for so many denials may not be legally valid. This doesn't mean the statute doesn't require "extraordinary ability"—it clearly does. But it raises serious questions about whether USCIS can deny cases at step two after acknowledging that the regulatory criteria were met at step one.
Courts Are Applying Independent Judgment Without Deference. Post-Loper Bright, federal judges are interpreting immigration statutes and regulations themselves rather than deferring to USCIS's interpretation. This matters most when USCIS's interpretation adds requirements or standards not found in the actual legal text.
Arbitrary Denials Are Being Overturned. When USCIS can't articulate clear, objective reasons for a denial—particularly when the petitioner has met the regulatory criteria—courts are finding these decisions arbitrary and capricious. Vague references to "sustained" acclaim or subjective assessments that someone isn't "impressive enough" aren't surviving judicial review when they're not tied to specific standards.
USCIS Must Follow Its Own Rules. Courts are holding agencies accountable for exceeding their statutory authority or failing to follow proper procedures. The days of informal policy changes through memoranda may be coming to an end, at least for major substantive changes to how cases are adjudicated.
If you're facing an EB-1A denial—particularly one where USCIS acknowledged you met the regulatory criteria but denied at the "final merits" stage—these legal developments create potential grounds for a federal court challenge.
Historically, many people viewed federal litigation as a last-resort option for immigration cases—something you'd only do if you were truly desperate. We think that framework is outdated given the current legal environment.
Here's a more realistic way to think about the EB-1A process in 2026: You file a strong petition based on meeting the statutory and regulatory requirements. USCIS makes a decision. If that decision is legally sound and properly reasoned, it stands. But if the decision relies on the legally-questionable "final merits" framework, applies standards not found in the statute, or fails to articulate clear reasons for the denial, then federal court review is a normal and appropriate next step.
This isn't about being litigious or antagonistic toward USCIS. It's about ensuring that agency decisions comply with the law and are supported by reasoned analysis. When they're not, the Administrative Procedure Act provides a mechanism for judicial review—just as it does for any other federal agency action.
Why Federal Litigation Is More Viable Now
Several factors make federal court challenges to EB-1A denials more viable than in the past. Loper Bright has eliminated the requirement that courts defer to agency interpretations, which was often the biggest hurdle in immigration litigation. The Mukherji decision has directly attacked the legal foundation of USCIS's current adjudication framework. And the pattern of courts pushing back on DHS overreach across multiple contexts suggests a judicial climate that's skeptical of agency actions that lack proper justification.
Additionally, when USCIS is denying cases at very high rates using similar reasoning, it becomes easier to demonstrate a pattern of arbitrary decision-making rather than individualized analysis. Courts are more likely to scrutinize agency reasoning closely when there's evidence of "wholesale denials" rather than careful case-by-case adjudication.
A Practical Analogy
Think of it this way: if you applied for a building permit, met all the requirements in the city code, but the inspector denied it based on unpublished internal standards or vague concerns about whether your project was "impressive enough," you'd likely appeal that decision. You wouldn't view appealing as being difficult or unreasonable—you'd view it as holding the agency accountable to follow its own rules.
That's the situation many EB-1A applicants face. The statute and regulations set out specific criteria. You meet those criteria. But then USCIS applies additional, often vague standards at the "final merits" stage to deny the case anyway. In that situation, federal court review is simply asking a judge to determine whether the agency followed the law.
Given the current legal landscape, we prepare every EB-1A case with two potential paths in mind from the beginning.
Stage One: Administrative Petition
At the administrative level, we prepare a comprehensive petition designed to meet both the regulatory criteria and to build a strong record in case litigation becomes necessary. This means:
We carefully analyze your qualifications against the actual regulatory criteria in 8 C.F.R. § 204.5(h)(3), not against USCIS's unpublished internal standards or subjective assessments. We gather evidence that directly addresses each criterion you're claiming, with careful attention to the specific language of the regulation. We prepare detailed legal briefs that not only argue why you meet the criteria, but also preserve arguments about the legal standards that should apply.
Throughout the process, we're conscious that everything we submit becomes part of the administrative record. If the case goes to federal court, the judge will review that record to determine whether USCIS's decision was supported by the evidence and consistent with law. So we build the record strategically—addressing potential weaknesses, anticipating likely objections, and documenting USCIS errors if they occur.
The goal at this stage is still administrative approval. Despite high denial rates, 25-40% of cases are still being approved, and strong cases with thorough preparation are more likely to succeed. But we're also realistic that even excellent cases may be denied under current adjudication practices, so we prepare accordingly.
Stage Two: Federal Court Litigation (If Necessary)
If USCIS denies your petition, we conduct a detailed analysis of the denial to assess whether federal court challenge is warranted. Not every denial should be litigated—sometimes USCIS identifies legitimate deficiencies, or the case may be stronger if we simply file a new petition with additional evidence. But when the denial is legally flawed, we're prepared to challenge it.
In federal court litigation, we would typically raise several types of arguments:
Procedural and Structural Challenges: Based on Mukherji, we can argue that the "final merits determination" framework lacks legal validity because it was never properly adopted through rulemaking. We can challenge USCIS's authority to add requirements not found in the statute or regulations. These are pure legal arguments that don't depend on the specific facts of your case.
Arbitrary and Capricious Review: We examine whether USCIS's reasoning is supported by the evidence in the administrative record, whether the agency applied proper legal standards, and whether the decision includes clear articulation of why you didn't meet the requirements. Denials that rely on vague standards, ignore significant evidence, or fail to explain the decision adequately are vulnerable to this type of challenge.
Post-Loper Bright Legal Interpretation: We can present our own interpretation of what the statute requires and ask the court to apply that interpretation without deferring to USCIS. This is particularly important for key terms like "extraordinary ability" and "sustained national or international acclaim," where USCIS may be applying interpretations that go beyond the statutory language.
The timeline for federal litigation typically ranges from 12-24 months from filing the complaint to a final decision, though some cases resolve more quickly through settlement. Possible outcomes include the court ordering USCIS to approve the petition (as happened in Mukherji), the court remanding with instructions for USCIS to reconsider under the proper legal standards, or settlement agreements where the government agrees to approve the case or reconsider it favorably.
This might sound counterintuitive, but there's an argument that the current high-denial environment actually strengthens the position of federal court challengers in certain ways.
When USCIS was denying 30-40% of cases, each denial could more plausibly be seen as the result of individualized analysis of that specific petitioner's qualifications. But when denial rates jump to 60-75%, and when those denials often use similar language about "sustained acclaim" or failing to demonstrate being at the "very top" of a field, it starts to look more like a systemic pattern of applying heightened, unpublished standards rather than careful case-by-case adjudication.
This pattern makes several litigation arguments stronger. It's easier to demonstrate that USCIS is applying the "final merits" framework in an arbitrary way when many qualified candidates are being denied at that stage. It's easier to show that USCIS is adding requirements not in the regulations when those requirements are being applied broadly across many cases. And it's easier to argue that the agency isn't following its own guidance about considering the totality of evidence when a clear pattern of denials emerges regardless of the strength of individual cases.
Additionally, current denials often share certain characteristics that courts have found problematic: reliance on the legally-questionable two-step framework, use of vague standards like "sustained" acclaim without defining them clearly, discounting of evidence without adequate explanation, and application of standards that appear nowhere in the statute or regulations. These are precisely the types of agency actions that are vulnerable to judicial review under the Administrative Procedure Act.
None of this guarantees success in any individual case—every case depends on its specific facts and the quality of evidence submitted. But it does suggest that legal challenges to current EB-1A denials may be viewed more favorably by courts than challenges in previous eras.
One question we hear frequently is whether it makes sense to file an EB-1A petition in the current high-denial environment, or whether it's better to wait and see if things improve.
There are real costs to waiting. Immigration policy doesn't always liberalize over time—it can also become more restrictive. Processing times can increase. Priority date backlogs can develop in previously current categories. And every month spent on a temporary visa rather than having a green card comes with professional and personal limitations.
From a career perspective, being on a temporary visa often means: limited ability to change employers or pursue opportunities outside your current role, inability to start your own business or work as an independent consultant, ongoing expenses and hassle of visa renewals, uncertainty about your ability to remain in the U.S. long-term, and constraints on major life decisions like buying a home or starting a family. For most high-skilled professionals, permanent residence is worth tens of thousands of dollars in career value over time.
Filing now also preserves certain options. It establishes a priority date that could matter if the category becomes backlogged. It creates a record of your qualifications at what may be their current peak. It starts the clock on both the administrative process and potential litigation timeline. And it allows you to take advantage of current legal developments like Loper Bright and Mukherji while those precedents are fresh and courts are actively considering their implications.
Perhaps most importantly, filing now with the understanding that federal litigation may be part of the process gives you two potential paths to approval rather than one. Even in a high-denial environment, 25-40% of cases are being approved administratively. And if yours isn't, you have the option of federal court review under a more favorable legal framework than has existed in years.
This doesn't mean everyone should file immediately without regard to case strength or timing considerations. But waiting for an uncertain future improvement in USCIS adjudications may not be the lower-risk choice it initially appears to be.
Our firm's approach is built on the recognition that EB-1A cases in 2026 require both administrative immigration expertise and federal litigation capability. Many immigration firms specialize in one or the other, but not both.
Integrated Expertise
We handle both the administrative petition and any subsequent federal litigation with the same attorneys who know your case intimately. This integration matters because we can prepare the administrative case with an eye toward potential litigation from the beginning. We build the administrative record strategically, preserve legal arguments, anticipate and address weaknesses, and document the process carefully. If litigation becomes necessary, we don't hand off to a separate firm that has to learn your case from scratch—we're already deeply familiar with every aspect of your situation.
This also tends to be more cost-effective than the alternative of paying one firm for the administrative petition and then paying a litigation firm separately to learn the case and handle federal court proceedings.
Preparation with Litigation in Mind
Even though we hope every case is approved administratively, we prepare each one as if it might go to federal court. This means building a comprehensive administrative record that will support judicial review if needed. It means anticipating how USCIS might deny the case and addressing those grounds proactively. It means preserving legal arguments about the proper standards that should apply. And it means documenting any procedural issues or errors that occur during USCIS's adjudication.
This approach doesn't hurt your administrative case—in fact, it often strengthens it by forcing us to be thorough and strategic about evidence and arguments. But it does ensure that if USCIS denies your petition in a legally questionable way, you're positioned to challenge that denial effectively.
Staying Current on Legal Developments
The legal landscape for EB-1A cases is shifting more rapidly now than it has in years. Loper Bright fundamentally changed administrative law principles. Mukherji directly challenged the framework USCIS has used for over a decade. Courts across the country are considering similar issues in pending cases. This isn't a static area of law where yesterday's strategies still work today.
We're tracking these developments closely—not just the major published decisions, but also patterns in how different courts and judges are approaching these issues, emerging strategies and arguments, unpublished decisions and orders that give insight into judicial thinking, and the practical implications of these legal changes for how cases should be prepared and litigated.
Immigration law changes quickly, but administrative law principles governing how agencies must operate are changing even more quickly right now. You need attorneys who are following these developments and understanding how they apply to EB-1A cases specifically.
We want to be clear about what we're not saying. We're not suggesting that federal litigation is easy, cheap, or guaranteed to succeed. We're not saying that every EB-1A denial should be litigated, or that litigation is always the best option. And we're not pretending that the current environment isn't challenging for EB-1A applicants.
What we are saying is this: The legal framework for challenging USCIS decisions has shifted significantly in the past two years. Between Loper Bright eliminating judicial deference and Mukherji attacking the validity of the "final merits determination" framework, there are stronger legal arguments available now than have existed in years. Courts across multiple contexts are showing skepticism toward DHS actions that exceed statutory authority or lack proper justification. And federal litigation, when appropriate, should be viewed as a normal part of holding agencies accountable rather than an extraordinary measure.
For qualified professionals with strong EB-1A cases, this means you have options. You're not at the mercy of arbitrary USCIS adjudications with no recourse. If you meet the regulatory criteria but receive a denial based on vague "final merits" reasoning, you can challenge that in federal court with better odds than you would have had a few years ago.
The current situation is challenging, but it's also creating opportunities for important legal victories that could reshape how EB-1A cases are adjudicated going forward.
If you're considering an EB-1A petition, or if you've received a denial that you believe was improper, we'd encourage you to schedule a detailed consultation. We can:
• Review your credentials against the actual statutory and regulatory requirements (not USCIS's internal unpublished standards)
• Assess whether EB-1A is the right category for you, or whether alternatives like EB-2 NIW or O-1 might be better options
• If you've been denied, analyze the denial to determine whether federal court challenge is warranted
• Discuss both the administrative process and potential litigation pathway, with realistic assessment of timelines, costs, and likelihood of success
• Answer your questions about how current legal developments affect your specific situation
• Explain exactly what would be involved in both the administrative process and any potential litigation
Our goal in these consultations is to give you the information you need to make an informed decision about how to proceed, whether that's filing an EB-1A petition, pursuing a different immigration option, or challenging a denial you've already received.
We believe the immigration system should operate according to law, meaning USCIS should follow the statutes and regulations that govern EB-1A cases, not impose additional unpublished requirements through subjective "final merits" assessments. We believe qualified professionals who meet the legal requirements deserve fair adjudications based on the evidence they submit and the standards actually written in law.
The current high denial rate doesn't necessarily mean the system is working as intended. It may mean that USCIS is applying standards that exceed their statutory authority, using a framework that was never properly adopted, or making decisions based on subjective assessments rather than objective regulatory criteria. When that happens, federal courts exist to provide a check on agency action.
With Loper Bright eliminating the requirement of judicial deference and Mukherji challenging the fundamental validity of current adjudication practices, we believe this is actually a time of opportunity despite the challenges. Courts are positioned to correct agency overreach, and the legal arguments for doing so are stronger now than they've been in years.
Please note that we are not just preparing petitions and hoping for the best. We're building cases with both administrative approval and potential litigation in mind, staying current on rapidly evolving legal developments, and positioning our clients to pursue every appropriate avenue for achieving their immigration goals.
This document is for informational purposes only and does not constitute legal advice. Every immigration case depends on its specific facts and circumstances. Past results, including court decisions discussed here, do not guarantee outcomes in future cases. The success of any petition or litigation depends on numerous factors including the strength of evidence, the specific legal issues presented, and developments in immigration law and policy.
