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EB-1A • June 2026

Why Meeting Three EB-1A Criteria Isn't Enough: The Final Merits Determination

Many applicants believe that satisfying three of the ten EB-1A criteria guarantees approval. It does not. USCIS uses a two-step analysis, and the second step — the "final merits determination" — is where strong-looking petitions are most often denied. Understanding it is the difference between assembling a checklist and building an argument.

Informational only — not legal advice

Emeritas is not a law firm. This article summarizes publicly available USCIS policy and federal court decisions for educational purposes. It does not create an attorney-client relationship and does not substitute for advice from a qualified immigration attorney. For authoritative guidance, refer to uscis.gov and the USCIS Policy Manual.

TL;DR

  • EB-1A is judged in two steps: first, do you meet at least 3 of the 10 regulatory criteria; second, does the totality of your evidence show sustained acclaim and a place among the small percentage at the very top of your field
  • Meeting three criteria is necessary but not sufficient — petitions that clear Step 1 are routinely denied at Step 2
  • The two-step approach comes from Kazarian v. USCIS (9th Cir. 2010) and is codified in the USCIS Policy Manual
  • In early 2026, a federal court questioned whether the second step was properly adopted — but the ruling is not binding nationwide, and USCIS continues to apply it
  • Want a criterion-by-criterion read on how your evidence holds up at both steps? Get a full Profile Evaluation

The Two-Step Framework

The EB-1A category requires evidence of "sustained national or international acclaim" and that the petitioner is "among that small percentage who have risen to the very top of the field" (8 CFR 204.5(h)(2)). To structure how officers evaluate that standard, USCIS follows the two-step approach the Ninth Circuit set out in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), now reflected in the USCIS Policy Manual (Vol. 6, Part F).

Step One is a counting exercise. Either you submit a one-time major internationally recognized award (such as a Nobel Prize), or you document that you satisfy at least 3 of the 10 regulatory criteria in 8 CFR 204.5(h)(3) — awards, memberships, published material about you, judging, original contributions, scholarly articles, exhibitions, leading or critical role, high salary, or commercial success.

Step Two is a judgment call. Having confirmed you meet the minimum number of criteria, the officer steps back and weighs the totalityof the evidence to decide whether it actually demonstrates sustained acclaim and top-of-field standing. This is the "final merits determination," and it is where the real adjudication happens.

Figure

How EB-1A Is Actually Decided

Your evidence

Awards, memberships, press, judging, original contributions, publications, exhibitions, leading role, salary, commercial success — measured against the 10 regulatory criteria.

Step One — Threshold

Meet at least 3 of 10 criteria

A pass here is required — but it only opens the door. It is not an approval.

Step Two — Final Merits

Does the totality of evidence show sustained acclaim?

The officer weighs everything together to decide whether you are among the small percentage at the very top of the field.

Approval

Source: 8 CFR 204.5(h)(2)–(3); USCIS Policy Manual Vol. 6, Pt. F; Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Educational summary, not legal advice.

Why Strong-Looking Petitions Fail at Step Two

A petition can satisfy three criteria on paper and still fall short of the final merits standard. Common patterns in denials include:

  • Criteria met "technically." Two memberships and a handful of citations may each tick a box without, together, painting a picture of someone at the very top of a field.
  • Evidence of participation, not acclaim. Authoring papers shows you are active; it does not, by itself, show that the field has recognized your work as influential.
  • No comparative context. Step Two is comparative — "top of the field" only means something relative to others in that field. Petitions that never establish that baseline give the officer nothing to weigh.

The practical takeaway: the strongest petitions are built backward from Step Two. They select criteria not just because they can be met, but because, taken together, they tell a coherent story of sustained recognition.

A 2026 Development Worth Watching

In early 2026, a federal district court ruled against USCIS in a case where the agency acknowledged the petitioner met more than the required number of criteria, yet still denied the petition at the final merits stage. The court questioned whether USCIS had properly established the mandatory two-step framework through formal rulemaking, and sent the case back for reconsideration.

It is important not to overstate what this means. The ruling came from a single district court and is not binding nationwide. USCIS continues to apply the final merits determination, and other courts may reach different conclusions. For now, the two-step framework remains the practical reality every EB-1A petitioner should prepare for — a development to watch, not a settled change in the law.

What This Means for You

If you are assessing your own profile, the lesson is to look past the question "can I check three boxes?" and ask the harder one: "does my evidence, viewed as a whole, show sustained recognition at the top of my field?" That is the question an officer will ultimately ask — and the one worth answering honestly before you file.

A structured evaluation can help you see where your evidence is strong at Step One but thin at Step Two — the gap that produces the most painful denials.

See how your evidence holds up at both steps

Our Profile Evaluation reads your record criterion-by-criterion and flags where a petition would clear Step One but struggle at final merits.

Get a Profile Evaluation

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