What is the final merits determination?

Key answer

Final merits is the second stage: the officer first counts how many criteria you met, then separately decides whether the evidence as a whole shows sustained acclaim. You can meet three criteria and still be refused at this stage.

Breakdown from the data

The answers below are translated from the original Russian - the language of the community chats.

The sequence: stage one is formal - are at least three of the ten criteria met (or a one-time major achievement). Stage two weighs everything together: does the record show you are among the small percentage at the top of the field, and that the acclaim is sustained.
This is why a refusal can arrive with the criteria formally met. In notices it appears as a separate conclusion after the criteria analysis, and it has to be answered separately - adding one more criterion does not by itself cure it.
The stage is under legal challenge. In January 2026 a federal judge in Nebraska vacated an EB-1A denial and held the two-step procedure itself unlawful (Mukherji v. Miller). The government appealed to the Eighth Circuit, case No. 26-1578. Pending that appeal USCIS practice is unchanged and final merits refusals continue.

This breakdown is built on real USCIS notices and public sources, linked below. It is reference material, not legal advice: officers decide similar cases differently.

Where the two stages came from

The regulation at 8 CFR 204.5(h) describes what must be produced: a one-time major international achievement, or evidence under at least three of the ten criteria. The regulatory text itself says nothing about a second stage - the phrase 'final merits' does not appear in it.

The two-step approach settled in after the Ninth Circuit's decision in Kazarian v. USCIS (2010). The court held that at the criterion-counting stage the officer should not be reasoning about how good the petitioner is: first check formally whether the documents match the criterion's description, and make the qualitative judgment separately. USCIS carried that logic into the Policy Manual, and it has applied to every EB-1A case since.

The practical consequence: three closed criteria are a necessary condition, not a sufficient one. A denial can arrive in a case where the officer agreed that three criteria were met.

What the officer weighs at the second stage

The second stage looks at the record as a whole: whether the documents show sustained national or international recognition, and that the petitioner is among the small percentage who have risen to the top of the field.

The key word is 'sustained'. Achievements from five years ago with nothing since read as an episode rather than as a standing in the profession. So the freshness of the evidence matters in its own right: an award won long ago works less well if the file is empty after it.

The second emphasis is comparison with the field, not with yourself. Climbing the ladder inside one company barely works at this stage: it shows an employer's confidence, not a position in the profession.

What a final-merits refusal looks like in the notice

In the text it is a separate block after the criteria are taken apart. First comes the list of what was and was not accepted, then the conclusion on the record as a whole - often phrased as the material not showing sustained acclaim at the required level.

Answering that conclusion by adding one more criterion is usually pointless: if the officer already agreed three criteria were met, a fourth changes nothing. What works is different - showing that the recognition is external, continuing, and comes from neither you nor your employer.

What the courts are doing with this right now

In January 2026 a federal judge in the District of Nebraska set aside an EB-1A denial and held the two-step procedure itself unlawful - Mukherji v. Miller. The reasoning is that the regulation provides for no separate qualitative stage, and that USCIS has in effect added a requirement beyond the text of the rule.

The government appealed to the Eighth Circuit, case No. 26-1578. Until the appeal is decided the agency's practice is unchanged: officers continue to issue final-merits denials, and you should not count on the district court decision helping your case automatically.

What follows practically: build the strategy on current practice, not on an expected appellate outcome. If your denial was issued at the second stage specifically, that is worth discussing with an attorney - but as an argument in your particular case, not as a ready-made ground.

Why EB-1A is refused at the second step (final merits)

We read 60 final-merits passages from real USCIS notices. In 32 of them the officer had already accepted three or more criteria and still refused or warned of refusal - 26 cases in all. Below are the grounds, in our own words, with the number of those 26 cases that raised each one, and what the notices themselves said was missing.

20of 26
Judging was accepted but does not set the person apart at step two: a handful of reviews, a one-off jury, grading student work, a contest where anyone can sign up to judge, or invitations from organisations the person already belongs to.
What was missing: Frequency and weight: a substantial number of reviews over years, repeat invitations from journals and conferences, an editorial-board seat, chairing a programme committee, juries that invite people for their standing.
19of 26
The role and contribution matter to the employer or clients, not to the field. The officer agrees the person is valuable to the company and points out that well-paid professionals who move sales and products are everywhere.
What was missing: Recognition outside your own company: trade coverage about you, other organisations adopting your approach, outside invitations that came because of that work.
18of 26
The papers exist, the influence does not show: few or no citations, no comparison with peers, the publication count offered as proof in itself, a journal’s ranking passed off as the author’s impact.
What was missing: Citations per paper compared against recognised people in the field, independent citing and uptake by others - not the journal’s impact factor.
15of 26
Press was accepted but is too thin for a “career of acclaimed work”: a few online pieces, broad interviews, a quote instead of a piece about you, outlets with no documented reach.
What was missing: Pieces about you and your work spread over several years, in outlets with documented circulation or trade readership, that show why you are being written about.
13of 26
The recommendation letters do not carry the conclusion: the authors know the petitioner personally, echo the regulation’s wording, use similar or identical phrasing, praise without verifiable facts.
What was missing: Letters from independent experts who learned of the work other than from the petitioner, with specifics and pointers to exhibits in the record; each author in their own voice.
12of 26
The acclaim is not sustained: awards, articles, judging and memberships were gathered in the year or two before filing, or a gap of years sits between early and recent achievements, or the last achievement is old.
What was missing: A continuous line across the years: achievements spread over the career and continuing up to the filing date; gaps explained and documented.
12of 26
Membership shows activity in the professional community, not a place at the top: nothing shows the body is selective, or there is no high-bar membership in the record at all.
What was missing: Bylaws with an outstanding-achievement bar that were in force before filing, and who exactly assessed the candidate.
11of 26
The awards do not set the person apart: hundreds receive them, you can nominate yourself for a fee, they are for taking part or go to the company rather than the person - or there are no recognised awards at all.
What was missing: The prize’s selectivity: how many entries and winners, who judges, how the trade press covers it; an award to you personally, not to a project.
11of 26
No comparison with those already at the top: the figures (citations, reviews, pay, awards) come without a baseline, and the officer cannot see what separates the petitioner from many successful peers.
What was missing: An explicit comparison with the field’s leaders on the same measures, with sources.
9of 26
High pay was accepted, but it shows value to the employer rather than renown: the officer does not see the earnings setting the person apart among the best in the occupation.
What was missing: A comparison against the top of the scale for the occupation and region, not the average, and a link between the pay and recognition.
6of 26
Doubts about reliability: documents rewritten to mirror the criterion after the RFE, copies illegible or hand-edited, the employer in the offer cannot be found, assertions with no evidence behind them.
What was missing: Documents that existed before filing, in legible complete copies; independent confirmation of every key fact.
4of 26
The letters and file talk about potential and future projects. The officer answers that eligibility is judged at the filing date and promise does not count.
What was missing: Results that already happened, dated before filing; plans belong only in the section on work in the US.
4of 26
The recognition is regional or internal: local press, city-level awards, a name within one’s own circle.
What was missing: Traces of national or international reach: national and trade outlets, prizes drawing entrants from many regions and countries.
3of 26
There are exhibitions, but the calibre of the venues is not shown - the officer cannot see they are the field’s leading showcases.
What was missing: A description of the venue: selection, curators, who else showed there, critics’ reviews.

Formulas officers repeat

16 - the category is for those already at the top, not progressing toward it (Matter of Price)
14 - “career of acclaimed work in the field”, from the 1990 House report
13 - the statute demands “extensive documentation” of acclaim
6 - an express citation of Kazarian as the basis for step two
4 - expert letters are advisory only, USCIS decides (Matter of Caron International)
4 - each document weighed for relevance, probative value and credibility (Matter of Chawathe)

The other 28 passages

16 - the case never reached the second step: fewer than three criteria were accepted
9 - an RFE warning that three criteria are not enough and the response must show the overall level
2 - the objection was not about acclaim but about continuing work in the US and prospective benefit to the US
1 - only the burden-of-proof formula

One case usually raises several grounds, so the counts do not add up. Every case here ended in a NOID or a denial, so these are counts of objections, not approval odds. No wording from the notices is reproduced.

Sources

USCIS Policy Manual, Volume 6, Part F, Chapter 2 - extraordinary ability criteria
The document officers cite in EB-1A notices: the two-step analysis and each of the ten criteria.
8 CFR 204.5 - the I-140 regulation
USCIS: EB-1 employment-based first preference
The agency overview of EB-1A, EB-1B and EB-1C.

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