This week, a Nebraska District Court Judge ordered the approval of an EB-1A petition after determining that the EB-1A’s Final Merits test was unlawfully implemented in 2010.
After her EB-1A petition was denied for failure to prove “sustained national or international acclaim,” Anahita Mukherji challenged the denial. Meeting 5 of the 10 regulatory criteria (applicants must meet at least 3), her case was denied while in the final merits review. This 2-step system is used to analyze EB-1A and EB-1B self-petitions where the applicant must show that they 1) have sustained national or international acclaim and 2) plan to continue working in their area of expertise.
Why Unlawful?
New legislative rules are implemented via the “notice and comment” procedure, allowing the proposed rule to receive public comments before the final rule is released. However, the final merits determination was entered in 2010 through a national policy memo, not through the formal rulemaking process. As such, Mukherji argued that it was established unlawfully and should not be grounds to deny her EB-1A self-petition. The judge presiding over the case agreed.
What now?
Since the ruling was made in a District Court, it is not a nationwide precedent (i.e., it does not directly impact the use of the Final Merits test nationally). However, the decision allows other EB-1A/B petitioners whose cases were denied for the same reason to consider the possibility of challenging the denial on the same grounds.
Please contact our firm if you want to file an EB-1 application, or if you want to discuss how this court ruling impacts your case.