By Heidi J. Meyers, copyright 2026 © all rights reserved.
For those petitioning as EB-1A, individuals of outstanding ability, Form I-140, it may be quite confusing as all the gushing in social media over the district court decision in Mukherji v. Miller, 837 F.Supp.3d 1022 (D. Neb. 01/2026), might have led one to mistakenly believe that proof of Step 2 was no longer required by USCIS, and had gone the way of the dinosaur.
After all, the US Government had withdrawn its appeal of the Mukherji case, and allowed the decision to stand. It was natural that many would wonder, is Step 2 no longer required?
This is not the case. USCIS is still requiring petitioners for EB-1A to meet the requirements of Step 2, and show that they have sustained national or international acclaim and are one of a few at the top of their field. You can review the USCIS Policy Manual, and there is Step 2 of Kazarian, alive and well.
A federal district court decision has no binding precedential value, not on other districts, not on other judges in the same district, not even on the same judge in a later case. It is persuasive authority only.
Think of immigration litigation in federal court as a long-running basketball game. Even if your team scores a basket, that does not mean your team has won the whole game. There will still be hours of running up and down the court and trying to make more baskets and score more points.
What are the two steps that USCIS uses to arrive at a decision on an EB-1A petition? According to the USCIS Policy Manual, the first step is to meet at least three out of ten criteria:
The first step...is limited to determining whether the evidence...meets the regulatory criteria. The evidence must be comprised of either a one-time achievement (that is, a major, internationally recognized award) or at least three of the ten regulatory criteria or be comparable to at least three of the ten regulatory criteria. The officer should apply a preponderance of the evidence standard when making this determination.
USCIS Policy Manual, Vol. 6, Part F, Ch.2. See, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2.
What is Step 2 for the EB-1A? According to USCIS:
In the second step... the officer should consider the petition in its entirety to determine eligibility...the petition must demonstrate that the person has sustained national or international acclaim and that their achievements have been recognized in the field of expertise, indicating that the person is one of that small percentage who has risen to the very top of the field...The officer applies a preponderance of the evidence standard when making this determination.
Id.
In Agarwal v. Miller, 4:26-cv-3049 (D. Neb. Sept. 25, 2026) the Court noted that the Plaintiff, Agarwal, had stated few facts in the complaint, and did not state his qualifications to meet the EB-1A standard.
Instead, The Plaintiff focused solely on the legal standard of requiring self-petitioners to meet Step 2 of Kazarian, alleging:
Defendant USCIS’s change in its policy on EB-1A adjudications announced in its December 22, 2010, policy memorandum [adopting the Kazarian policy] was a substantive, legislative rule change because it substantively altered the rights of EB-1A petitioners and changed the substantive eligibility requirements for an EB1 category immigrant visa.
The Plaintiff pointed out that no “notice and comment” procedure was filed, and there was no publication of the new rule in the Federal Register. The Plaintiff urged the Court to find that Step 2 of Kazarian was arbitrary and capricious, ultra vires and in violation of the statute, the INA (Immigration and Nationality Act) and the federal regulations, as well as the APA (the Administrative Procedures Act).
However, Judge Buescher wasn’t having it. The Judge pointed out that he had denied challenges to the Kazarian two-step policy in two prior cases. The Court was not impressed by the Plaintiff’s failure to include the facts in support of his EB-1A in the complaint, finding “Agarwal has not made plausible factual allegations”.
The Court held as a matter of law that Step 2 of the USCIS policy is consistent, not inconsistent, with 8 U.S.C. § 1153(b)(1)(A) and the agency's preexisting legislative rule in 8 C.F.R. § 204.5(h).
In another recent challenge to an EB-1A denial in federal court, Trajano v. USCIS, No. 25-cv-12388-FDS (D. Mass. July 24, 2026), the Plaintiff was a tattoo artist, perhaps a tough sell.
In Trajano, the Court agreed with USCIS's determination that plaintiff did not satisfy Step 2, and had not shown sustained national or international acclaim or that he was one of a few at the top of his field. The Plaintiff had failed to show the significance of his awards, such as prompting wide praise for his work from critics, drawing notable crowds, raising attendance, or resulting in the success of the events.” He also “has not shown that his judging experience places him among that small percentage who has risen to the very top of the field of endeavor.”
Not all awards or judging experiences place one at the top of one’s field:
For example, coming in first place in the hundred-meter dash at an athletic competition might be a major accomplishment, but one would need to know whether it occurred at the Olympics or at a local track meet to know whether it shows that an individual possesses extraordinary ability as a sprinter. Accordingly, without any evidence as to the relative significance of the recognition plaintiff received, the agency's determination that he failed to meet the requirements for EB-1 classification was not arbitrary or capricious.”
In Trajano, Plaintiff also made the mistake of challenging Step 2 of Kazarian and mentioning the Mukherji decision, too late in the proceedings. Because he had not made this claim initially, but rather waited until submitting his reply brief, the argument was deemed waived.
Thus, there are now two recent conflicting district court decisions in the District of Nebraska, plus another negative decision recently in Massachusetts. This means, if you want to challenge your own EB-1A denial in federal court, you must carefully include all the facts in support of how you meet both the criteria in Step 1 and the totality of the circumstances determination in Step 2, that you have sustained national or international acclaim and are one of a few at the very top of your field.
You should include as an alternative claim, that Step 2 of Kazarian is unlawful and a violation of the APA, and should be found ultra vires and set aside. Step 2 is nowhere to be found in either the statute or the federal regulations. You need to include all your causes of action in your complaint, including your challenge to the Step 2 of the Kazarian policy, and not wait until later in the proceedings to bring up this argument.
Of course, the best strategy is to do a good job and presentation with your EB-1A petition in the first place with USCIS so it will be approved and not denied, rather than battling it out in federal court.