The United States Citizenship and Immigration Services (USCIS) has withdrawn its appeal against a district court ruling that invalidated the agency's use of the controversial 'final merits determination' framework in an EB-1A extraordinary ability green card case involving an Indian applicant. In late January, a Nebraska district court not only set aside USCIS's denial of an EB-1A petition but also directed the agency to approve it. However, USCIS initially sought review of this order—an appeal it has now withdrawn.
Implications of the Withdrawal
In a press release issued on Tuesday night, Ariela Lake Law and Brian Green, the immigration attorneys representing the applicant, explained that USCIS must now approve the petition as ordered by the district court. More significantly, they stated that the district court ruling will continue to serve as 'persuasive legal authority' in future challenges to USCIS's reliance on the two-step adjudication process.
Understanding EB-1A
EB-1A is a fast-track US green card category for individuals with extraordinary ability, allowing them to self-petition based on sustained national or international acclaim without employer sponsorship. At the centre of the dispute was USCIS's two-step adjudication process. Under this framework, officers first determine whether an applicant has either won a major international award or satisfies at least three of 10 regulatory criteria, such as recognised prizes, published material, judging the work of others, original contributions, or leading roles at reputed organisations.
The Final Merits Determination
Once that threshold is crossed, USCIS conducts a second review known as the 'final merits determination', reassessing the evidence to decide whether the applicant has demonstrated sustained acclaim and belongs to the small percentage at the very top of the field. In the present case, USCIS had accepted that the applicant met five regulatory criteria but denied the application at the final merits stage, contending that she had not demonstrated sustained acclaim in more recent years.
Legal Flaw Found
The district court found that approach legally flawed. It held that USCIS had adopted the second-step review through internal memoranda without undertaking the notice-and-comment rulemaking required under the Administrative Procedure Act.
Expert Perspectives
The Times of India spoke to several immigrant attorneys who welcome the withdrawal but point out that the impact should not be overstated. Cyrus D. Mehta, a New York-based immigration attorney, told TOI that had the Eighth Circuit Court of Appeals ruled on the merits and affirmed the lower court, the decision could have become 'binding precedent' within that jurisdiction and potentially influenced courts elsewhere.
"By withdrawing the appeal, USCIS avoided the risk of an adverse appellate ruling while leaving the district court judgment intact," he said. As a result, the ruling remains persuasive and is binding only in relation to the applicant.
Limited but Significant Impact
For EB-1A applicants, the immediate impact is therefore limited but potentially significant. While the withdrawal does not dismantle the final merits test across the board, it may provide future litigants with an additional legal argument when challenging denials that rely on standards not expressly rooted in statute or regulation.
