A federal district court decision raises important questions about how USCIS evaluates extraordinary ability petitions at the “final merits determination” stage.
USCIS accepted that the applicant satisfied more than the minimum number of regulatory criteria. Nevertheless, it denied the petition after concluding that the evidence did not establish sustained national or international acclaim.
The court set aside the denial and remanded the case with instructions to approve the petition. Its reasoning addressed two distinct issues.
First, how the review framework was introduced. The court concluded that USCIS had adopted the additional final merits requirement without the required notice-and-comment rulemaking. It also found that the agency had failed to acknowledge and adequately explain its departure from its longstanding adjudicative approach.
Second, how the individual denial was justified. The court found that USCIS had not articulated a sufficiently specific legal and factual basis for its conclusion. It also rejected an approach that effectively required the applicant to keep receiving awards or maintain the same level of professional output indefinitely.
The practical lesson: reviewing an EB-1A denial requires examining both the evidence and the legal basis for the agency’s demands. A conclusion that an applicant lacks sustained acclaim must be supported by a reasoned explanation tied to the record and the applicable requirements.
This decision does not establish nationwide abolition of the final merits assessment or guarantee approval whenever three criteria are satisfied.
How does O-1 fit into the picture?
Although this ruling concerns EB-1A, it also highlights the importance of planning an extraordinary ability case carefully from the outset. For founders and other professionals, O-1A may provide an appropriate route to work in the United States while continuing to develop their professional record.
O-1A and EB-1A share many evidentiary categories, but each petition must independently satisfy its applicable requirements. An O-1A approval does not guarantee a future EB-1A approval, and time spent in O-1A status alone does not establish eligibility.
At Regatta Consult, we assist clients with O-1 visa matters, from initial eligibility assessments and evidence planning to petition preparation. If you are considering this route, you can complete the initial O-1 screening questionnaire or schedule an online consultation through our website: https://regattalex.com.
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