What Is the Final Merits Determination in an EB-1A Case?

Most EB-1A petitions that are denied were not denied for failing the criteria. They were denied at the final merits determination, the second step of the analysis USCIS has applied since Kazarian v. USCIS, where the officer sets aside the checklist and asks whether the record as a whole shows sustained national or international acclaim and a place among the small percentage at the very top of the field. Petitioners who prepare for the first step and not the second are the ones who receive a decision acknowledging three criteria and denying the case anyway. Our EB-1A extraordinary ability green card page describes the ten criteria; this post is about what happens after you meet them.

Where the final merits determination comes from

The regulation at 8 CFR 204.5(h)(3) lists ten criteria and says a petitioner must meet at least three. For years, officers read that to mean that each piece of evidence had to independently prove extraordinary ability, which made the criteria nearly impossible to satisfy. In Kazarian v. USCIS, the Ninth Circuit rejected that approach and separated two questions: first, whether the evidence meets the plain terms of each criterion, and second, whether the petitioner has shown extraordinary ability as the statute and regulation define it. USCIS adopted the two-step framework in policy guidance and applies it in every EB-1A case, and in EB-1B cases as well.

The practical consequence is that the criteria have become easier to satisfy on paper, and the real contest has moved to step two.

What USCIS weighs at step two

At the final merits determination in an EB-1A case, the officer looks at the same evidence again, this time qualitatively. The questions include:

• Awards: were they competitive, national or international in scope, and given for excellence in the field, or were they institutional, regional or student-level?
• Press: did major media or professional publications write about you and your work, or did you appear in a list, a passing mention or a paid placement?
• Judging: did you review for journals and conferences occasionally, as many researchers do, or serve in a selective capacity that reflects standing?
• Contributions: did others cite, license, adopt or build on your work, and can that be shown with data rather than adjectives?
• Roles and pay: were you critical to an organization with a documented distinguished reputation, and is your remuneration high compared with reliable wage data for your field and location?

The officer also considers whether acclaim is sustained. A burst of attention five years ago followed by silence raises the question of whether you remain at the top of the field today. And the officer considers the field itself: the comparison is with others in your field, so how you define the field matters.

Why petitions fail here

The common pattern is a record that is good by any ordinary standard but reads as typical for a productive professional. A researcher with twenty publications, modest citations, routine peer review and letters from collaborators meets three criteria and does not show acclaim. A founder with a funded company, local press and a high salary meets three criteria and does not show acclaim. The petition treated the criteria as the goal rather than as the vocabulary for an argument about standing.

A second pattern is weak comparative evidence. The regulation asks whether you stand among the small percentage at the very top, which is a comparison, yet many petitions include nothing that places the beneficiary relative to peers: no citation percentile, no ranking, no selectivity rate for an award, no wage data. Without comparison, the officer has no basis to find the top of the field.

A third pattern is letters doing the work documents should do. Our post on what makes a strong recommendation letter explains why letters interpret evidence rather than replace it.

Building a record that survives step two

Start by writing the final merits argument first, before mapping exhibits to criteria. State in two paragraphs why an informed stranger would agree you are at the top of your field. If you cannot, the petition is premature, and an O-1A visa or an EB-2 National Interest Waiver may be the right step while the record matures.

Then gather comparative evidence for every criterion you claim: selection ratios for awards, circulation figures for press, citation data benchmarked against the field, adoption evidence for contributions, and wage surveys for pay. Our EB-1A evidence checklist lists the documents by criterion. Define the field precisely and consistently, since a narrow field helps show the top but invites the objection that it was drawn around you.

Finally, document sustained acclaim up to the filing date. Recent invitations, recent citations and recent coverage show the acclaim continues, and the regulation requires that you will keep working in the field in the United States. If you have not yet tested yourself against the criteria, our post on whether you qualify for the EB-1A is the place to start, and the firm’s talent and extraordinary ability visa overview describes the alternatives if you fall short today.

If you want an honest read on whether your record would survive the EB-1A final merits determination, Capitol Law Partners will review it and tell you what is missing. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our EB-1A green card page or schedule a consultation.