Nebraska Court Mandates USCIS Approve Journalist’s EB-1A After Calling Agency's Process Arbitrary and Unlawful

The case, Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb. Jan. 28, 2026), involves plaintiff Anahita Mukherji, an Indian national and journalist, who filed a Form I-140 immigrant petition for alien worker seeking classification as an alien of extraordinary ability under the EB-1A category pursuant to 8 U.S.C. § 1153(b)(1)(A) and 8 C.F.R. § 204.5(h). Mukherji submitted her petition on March 8, 2024, self-petitioning based on her accomplishments in journalism.

To qualify for EB-1A, a petitioner must demonstrate sustained national or international acclaim and that they are among the small percentage at the very top of their field. The regulations at 8 C.F.R. § 204.5(h)(3) require evidence of either a one-time major international award or at least three of ten specified criteria, such as published material about the alien in professional or major trade publications, original contributions of major significance, authorship of scholarly articles, judging the work of others, and high salary or remuneration.

In her petition, Mukherji provided evidence including published articles about her work, her role as a judge in journalism awards, her authorship of articles in major media outlets like the Times of India, and letters from experts attesting to her impact. U.S. Citizenship and Immigration Services (USCIS) reviewed the evidence and conceded that she satisfied five of the ten regulatory criteria: (i) documentation of lesser nationally or internationally recognized prizes or awards; (ii) published material about the alien; (iii) participation as a judge of the work of others; (iv) authorship of scholarly articles; and (v) display of work at artistic exhibitions or showcases (interpreted broadly for journalism).

Despite this concession, USCIS denied the petition following its two-step adjudication framework, derived from the Ninth Circuit's 2010 decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). In the first step, USCIS confirmed the criteria were met. However, in the second step—the "final merits determination"—USCIS conducted a holistic review and concluded that the totality of the evidence did not establish sustained national or international acclaim. Specifically, USCIS noted that much of Mukherji's acclaim appeared dated (prior to 2016), her post-2015 work for outlets like the Times of India and Spaceship Media did not demonstrate continued high-level recognition, and the evidence lacked sufficient recent awards, media coverage, or impact metrics to show she was at the "very top" of her field.

Mukherji challenged the denial under the Administrative Procedure Act (APA), 5 U.S.C. § 706, filing suit in the U.S. District Court for the District of Nebraska against USCIS Director Loren K. Miller and other officials. She argued that the two-step framework, particularly the final merits determination, was unlawfully adopted without notice-and-comment rulemaking, arbitrary and capricious, and an abuse of discretion. The parties filed cross-motions for summary judgment, and the court, presided over by Judge Bataillon, issued its decision on January 28, 2026.

Issues

The central issues in the case revolved around the legality of USCIS's adjudication process for EB-1A petitions:

1. Whether the two-step framework constitutes a substantive or legislative rule requiring notice-and-comment rulemaking under the APA. Mukherji contended that USCIS's adoption of the framework via internal policy memoranda in 2010—without public notice, comment, or formal promulgation in the Federal Register—violated APA requirements for rules that impose new substantive obligations. USCIS argued the framework was merely interpretive, clarifying existing regulations based on Kazarian dicta, and thus exempt from rulemaking.
2. Whether USCIS's shift from a single-step to a two-step adjudication process was adequately justified. Prior to 2010, USCIS used a single-step approach, weighing evidence holistically from the outset. The court examined if USCIS provided a reasoned explanation for the change, as required by Supreme Court precedents like Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), and Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (2016).
3. Whether the application of the final merits determination in this case was arbitrary and capricious. Mukherji argued that USCIS's denial lacked a clear standard, imposed extra-regulatory requirements (e.g., "recency" of acclaim or continuous awards), and failed to provide a reasoned path from the conceded criteria to the ultimate denial. USCIS defended the denial as a discretionary totality-of-the-circumstances assessment.
4. The role of judicial deference post-Loper Bright. The court considered whether Chevron deference applied, but citing Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), which overruled Chevron, it emphasized independent judicial interpretation of statutes without deferring to agency views.

Decision

The U.S. District Court for the District of Nebraska granted summary judgment in favor of Mukherji, vacating USCIS's denial of her I-140 petition and remanding the case to USCIS with explicit instructions to approve the petition. The court held that the two-step adjudication framework, including the final merits determination, "was not valid at its inception" because it was unlawfully adopted without notice-and-comment rulemaking, represented an unexplained policy reversal, and was applied arbitrarily and capriciously in violation of the APA.

The remedy was notable: rather than a standard remand for reconsideration, the court ordered direct approval of the petition, finding that the record—absent the invalid framework—clearly established eligibility. This outcome was justified by the court's review of the administrative record, where USCIS had already conceded satisfaction of five criteria, and no other basis for denial existed. The ruling is binding within the District of Nebraska (part of the Eighth Circuit) but does not set nationwide precedent unless appealed and affirmed.

Analysis of the Decision

The Mukherji decision represents a significant judicial rebuke of USCIS's long-standing EB-1A adjudication practices, potentially reshaping how extraordinary ability petitions are evaluated and litigated. At its core, the ruling dismantles the procedural foundation of the two-step framework, which USCIS formalized in a 2010 policy memorandum following Kazarian. The court viewed the framework as substantive because it altered the evidentiary burden: the first step checks mere satisfaction of criteria without qualitative scrutiny, while the second imposes a discretionary "totality" review that can override the first. This, the court argued, adds extra-statutory hurdles, echoing Kazarian's criticism of USCIS imposing novel requirements. By classifying it as legislative, the court invoked APA § 553, requiring public input for rules with binding effect—a process USCIS bypassed.

The analysis of the policy shift is particularly incisive. The court highlighted a 1995 proposed rule (60 Fed. Reg. 29771) that explicitly described a similar two-step process as substantive, yet it was never finalized. USCIS's 2010 pivot, without acknowledging the prior single-step method or justifying the change, failed the "reasoned decision-making" standard from State Farm and Encino. This underscores a broader theme: agencies cannot informally overhaul processes that affect rights without transparency.

On arbitrariness, the court criticized USCIS's vague denial rationale, such as emphasizing "recency" without regulatory basis. Quotes from the opinion (as reported) include: "This framework was never valid to begin with," emphasizing its procedural invalidity. The court rejected USCIS's claim of unreviewable discretion, applying Loper Bright to independently interpret the Immigration and Nationality Act (INA) as not authorizing such a bifurcated process.

Link to full decision: manifestlaw.com/blog/wp-content/uploads/2026/01/24-Summary-Judgment-Granted.pdf

Citation: Mukherji v. Miller, No. 4:24-CV-3170, 2026 WL 287456 (D. Neb. Jan. 28, 2026).