EB-2 NIW Final Merits Determination: Why Strong Petitions Still Fail Here and the Evidence That Changes the Decision

The EB-2 NIW final merits determination is the stage where petitions built as three strong individual prong arguments sometimes fall apart. A clear national importance case. Solid positioning evidence. A waiver justification that appears to cover the necessary ground. And still, a denial that cites the officer’s overall assessment that the record does not cumulatively demonstrate what the Dhanasar framework requires. This is not a contradiction it is a reflection of how the holistic review works and what ‘totality of evidence’ actually means in USCIS adjudication.

Understanding where this analysis lives in the NIW framework and distinguishing it from the EB-1A Kazarian final merits step is the first analytical task. Building a petition that survives it requires understanding what cross-prong coherence means: the degree to which the national importance argument, the positioning evidence, and the waiver justification reinforce each other rather than sitting as parallel but disconnected documents. The most common failure at the merits stage is not any single weak prong it is a petition whose prongs do not tell a unified story.

Where ‘Final Merits’ Lives in the EB-2 NIW Framework

The term ‘final merits determination’ most precisely describes a concept from the EB-1A Kazarian framework (Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)), where it refers to the second step of a two-step analysis: Step 1 counts whether three of ten criteria are satisfied; Step 2 evaluates whether the totality of evidence demonstrates that the petitioner is truly at the very top of their field with sustained national or international acclaim. That Step 2 has a formal name: the final merits determination.

For the EB-2 NIW, the analytical structure is different. The Matter of Dhanasar framework (26 I&N Dec. 884, AAO 2016) does not have a separate labeled ‘final merits’ step sitting after the three prongs. What it has is a standard of proof preponderance of the evidence applied holistically across all three prongs together. USCIS evaluates each prong, and then it evaluates whether the totality of the record, considered as a whole, supports granting the waiver.

There are two specific places where ‘final merits determination’ in the formal Kazarian sense does appear in EB-2 NIW contexts:

• For petitioners qualifying under the Exceptional Ability threshold (rather than the advanced degree path), the same Kazarian two-step applies at the threshold stage: Step 1 confirms three of six criteria are satisfied; Step 2 evaluates whether the totality of evidence demonstrates expertise significantly above that ordinarily encountered. That Step 2 is a formal final merits determination.
• In USCIS’s general practice of applying a ‘holistic evaluation’ to the overall NIW record after analyzing each prong this is not a separate labeled stage, but officers do assess whether the evidence cumulatively presents a coherent, credible case for the waiver when all three prongs are read together.
  

The Kazarian vs. Dhanasar Distinction: Why It Matters Practically

	EB-1A (Kazarian)	EB-2 NIW (Dhanasar)
Analytical structure	Two formal steps: criteria counting → final merits	Three-prong test with holistic totality review across all prongs
Standard at merits	‘Very top of the field’ small percentage with sustained national/international acclaim	‘National importance’ and ‘well-positioned’ more flexible standard including prospective work
Focus	Individual’s career status and peer-recognition relative to field	Prospective impact of the specific proposed work in the US
Formal merits step	Yes explicit second step after criteria counted	No separate labeled step; holistic assessment embedded in the three-prong analysis
Where merits applies formally	All EB-1A petitions	Exceptional Ability threshold (Step 2) + holistic Dhanasar review

Cross-Prong Coherence: The Hidden Test Most Petitions Fail

The reason petitions with individually strong prong arguments still fail holistic scrutiny is usually not a weakness in any single prong. It is the absence of cross-prong coherence the degree to which the three arguments reinforce each other and tell a unified story about one specific proposed work.

Consider what USCIS sees when it reads three well-constructed but structurally disconnected prong arguments. Prong 1 establishes that a field is nationally important. Prong 2 demonstrates that the petitioner has a strong professional record in that field. Prong 3 argues that the PERM process is inconvenient for the petitioner’s general career type. These can all be individually solid and still fail holistically because none of them is specifically about the proposed work and why this specific petitioner advancing this specific endeavor benefits the US in a way that justifies the waiver.

Cross-prong coherence requires that the same specific proposed work appears in each prong’s argument, with each prong answering a different question about it:

• Prong 1 answer: why does this specific proposed work matter to the US at a national level what problem does it address, what federal priority does it serve, what changes when it succeeds.
• Prong 2 answer: why is this specific petitioner not a generic qualified professional in the field, but this person with this track record and these resources credibly positioned to advance this specific proposed work.
• Prong 3 answer: why does the waiver, specifically, enable this specific proposed work to produce the national benefit described in Prong 1 that the petitioner described as well-positioned to deliver in Prong 2.

When the three prongs reference the same proposed work and answer these three distinct questions about it, the petition reads as a unified argument. When each prong is written separately without connecting back to the same specific work, the petition reads as three parallel credential and policy documents strong individually, but not making a coherent case for the waiver.

What USCIS Actually Weighs in the Holistic Assessment

The holistic assessment under the preponderance of evidence standard asks whether, reading the entire record, it is more likely than not that the petitioner satisfies all three Dhanasar prongs simultaneously. Officers are not required to give each prong equal weight, and the Policy Manual guidance under PA-2025-03 provides a non-exhaustive list of factors that can strengthen or weaken the overall case.

Evidence That Strengthens the Overall Record

• Policy alignment evidence: explicit citations to federal legislation (CHIPS and Science Act, Inflation Reduction Act, relevant HHS or DOD strategic plans), NSTC/NSC Critical and Emerging Technologies lists, or executive office priorities not just assertions that the field is important, but cited documentation establishing that the US government has specifically identified this area as a national priority.
• Spillover or system-level impact modeling: evidence showing that the benefit of the proposed work extends beyond direct outputs to an entire sector, supply chain, or public health infrastructure demonstrating the ‘ripple effect’ the Dhanasar standard requires for national importance.
• Independent third-party validation from government or quasi-governmental entities: letters from federal agencies, national laboratories, or FFRDCs that specifically engage with the proposed work and explain why it addresses a documented national need. Per PA-2025-03, these can be close to decisive at the holistic stage.
• Progress evidence tied to the specific proposed endeavor: grants awarded, patents filed, early deployments, partnership agreements, or pilot results that demonstrate the petitioner is not just qualified in the field generally but has already begun advancing the specific proposed work.
• Quantified national impact projections: specific, independently-verifiable numbers not ‘significantly benefit society’ but projected outcomes anchored to federal statistics, industry benchmarks, or government reports.
  

Evidence That Weakens the Overall Record

• Employer-confined benefits: evidence or framing that makes the proposed work’s national importance dependent on its value to the petitioner’s specific employer, their employer’s clients, or a geographically bounded community. National importance requires implications that extend beyond any single organization.
• Inconsistent expertise alignment: the 2025 PA-2025-03 update reinforced that USCIS evaluates whether the petitioner’s area of expertise shares skillsets with the proposed endeavor. A petitioner whose Prong 2 evidence is strongest in one technical domain proposing an endeavor primarily in an adjacent but distinct domain creates a coherence gap.
• Generic expert letters without corroboration: letters that praise the petitioner’s general professional standing without engaging the specific proposed work or being backed by independent verifiable documentation carry reduced weight at the holistic stage.
• Multiple unrelated endeavors: proposing several distinct lines of work simultaneously fragments the Prong 1 national importance argument and dilutes the Prong 2 positioning argument. Officers reading a petition with three loosely related proposed endeavors have no clear basis for finding that this petitioner is well-positioned to advance any specific one of them.
• The labor shortage trap: citing a shortage of US workers in the petitioner’s field as a reason for the Prong 3 waiver is a documented failure mode. Dhanasar Prong 3 is not a labor market analysis it is a benefits of waiving PERM analysis. The argument must address why granting the waiver specifically enables national benefit, not why fewer US workers exist in the field.
  

The Mukherji v. Miller Ruling and Its Current Significance

On January 28, 2026, the US District Court for the District of Nebraska in Mukherji v. Miller (No. 4:24-CV-3170) issued a ruling that the two-step final merits framework as applied to EB-1A extraordinary ability petitions was adopted by USCIS without following the notice-and-comment rulemaking procedures required by the Administrative Procedure Act. The court found this procedurally invalid under the APA.

Several important limitations on this ruling’s significance for NIW petitions:

• This is a district court decision, not a circuit court or Supreme Court ruling. It is not nationwide precedent and does not bind other courts or USCIS adjudicators in other jurisdictions.
• The case specifically addressed the EB-1A extraordinary ability category and the Kazarian two-step framework. Its direct applicability to EB-2 NIW petitions where the framework is Dhanasar rather than Kazarian is limited and depends on how courts read the overlap.
• USCIS continues to apply the three-prong Dhanasar analysis to NIW petitions. The Mukherji ruling does not require USCIS to abandon that framework; it establishes a procedural APA argument that may support judicial review in certain districts.

The broader significance: the ruling, combined with the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo (which ended Chevron deference to agency interpretations), strengthens the available arguments for federal court challenges to USCIS decisions that appear to impose requirements beyond the regulatory text. This is a developing area and for petitioners whose well-documented, three-prong-complete petitions receive holistic denials that appear to add requirements beyond what Dhanasar specifies, the judicial review pathway is more viable than it was two years ago.

For Exceptional Ability Petitioners: The Formal Two-Step at the Threshold

For EB-2 NIW petitions using the Exceptional Ability path (rather than the advanced degree path), the formal Kazarian-derived two-step does apply at the threshold eligibility stage, before the Dhanasar NIW analysis begins:

• Step 1: at least three of the six criteria at 8 CFR § 204.5(k)(3)(ii) must be satisfied academic record, ten years of experience, professional license, high salary, professional memberships, or recognition for achievements.
• Step 2 (formal final merits determination): the officer evaluates whether the totality of the evidence demonstrates a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

The principles that apply to this formal merits stage for Exceptional Ability petitioners are the same ones discussed above: the evidence must be cumulatively coherent, not just individually counted. Three criteria satisfied with evidence representing ordinary professional standing will not survive Step 2 the totality must demonstrate that the petitioner’s expertise is genuinely significantly above the ordinary, with the same independence, specificity, and comparative context requirements that apply to the holistic Dhanasar assessment.

Building a Petition for Holistic Strength From the Start

The practical implication of understanding the holistic assessment is that petition strategy should be built coherently around a single proposed endeavor from the beginning not assembled as three separate documents and then joined by a cover letter.

The evidence design principles that produce holistic strength:

1. Start with the specific proposed endeavor and work backwards. What specifically will this petitioner do? What national-level outcome results when they succeed? Which federal priorities does that outcome serve? That answer is the thread that connects all three prongs to a single coherent case.
2. Build Prong 1 from federal documentation, not from field-level importance claims. Cite the specific legislative text, agency strategic plan, or NSTC/NSC list that establishes this specific area as a national priority. The connection between the proposed work and the documented priority should be explicit, not inferred.
3. Build Prong 2 from the specific proposed work, not from general credentials. The positioning evidence should show that this petitioner’s specific track record the specific prior work, the specific available resources, the specific existing collaborations positions them to advance this specific proposed endeavor. Not that they are generally qualified in the field.
4. Build Prong 3 from the specific proposed work’s execution requirements. The waiver argument should explain why the PERM framework would specifically undermine the ability to advance this specific proposed work because of its self-directed nature, its urgency in a time-sensitive national context, or the specific benefit this petitioner’s approach provides that justifies flexibility.
5. Obtain government validation tied to the specific proposed work. An agency letter that engages with the specific endeavor not just the general field provides holistic support that simultaneously strengthens all three prongs. It validates national importance, confirms the petitioner’s positioning in a nationally relevant context, and provides independent evidence that the waiver serves a documented government mission.
6. Ensure expert letters engage the specific proposed work. The cross-prong coherence test applies to expert letters as well. A letter that praises the petitioner’s general expertise contributes to Prong 2 positioning only. A letter that explains specifically why the petitioner’s proposed work addresses a documented national need and why the petitioner’s specific track record positions them uniquely to advance it contributes to all three prongs simultaneously.
   

Closing the Gap on EB-2 NIW Final Merits Determination

The EB-2 NIW final merits determination whether understood as the formal two-step for Exceptional Ability threshold petitioners, or as the holistic totality review across all three Dhanasar prongs asks the same fundamental question: does the record, read as a whole, make a credible, coherent, independently-documented case that this specific petitioner advancing this specific proposed work in the US is genuinely in the national interest?

Petitions that answer that question with three independently strong but structurally disconnected arguments often fail the holistic test even when each prong is individually defensible. Petitions that are built around a single, specific proposed work with each prong answering a different question about the same specific work, supported by independent documentation and tied to federal priority evidence produce the cross-prong coherence that makes the overall record persuasive rather than just technically complete.

FAQ: EB-2 NIW Final Merits Determination