We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:
FY 2027 H-1B CAP Registration Opens March 4 With Major Changes: Wage-Based Lottery and Potential $100,000 Fee
U.S. Citizenship and Immigration Services has announced key dates and significant policy changes for the FY 2027 H-1B CAP season, introducing—for the first time—a wage-based weighted lottery and signaling a potential $100,000 fee for certain consular notification petitions.
Key dates and process:
- Registration window: Opens March 4, 2026 at noon ET and closes March 19, 2026 at noon ET. All CAP registrations must be prepared and submitted online during this period.
- Selection notifications: Employers and representatives will be notified of selected beneficiaries by March 31, 2026.
- Petition filing: USCIS is expected to begin accepting H-1B CAP petitions on April 1, 2026, with the filing window remaining open for at least 90 days.
Beneficiary-centric selection continues:
For the third consecutive year, USCIS will use a beneficiary-centric selection system. A unique foreign national—identified by a single passport or valid travel document—will be selected by lottery, rather than individual employer registrations. Registrations submitted under multiple documents for the same beneficiary may be invalidated.
New wage-based weighted lottery:
A major shift for FY 2027 is the move from a purely random lottery to a wage-based weighted system tied to the Department of Labor’s four-level OEWS prevailing wage framework:
- Level 4: entered four times
- Level 3: entered three times
- Level 2: entered two times
- Level 1: entered once
Employers must declare the applicable OEWS wage level at registration. Higher offered wages will materially increase a beneficiary’s odds of selection. USCIS is expected to conduct two lotteries to meet the annual 85,000 CAP —first for the 65,000 regular CAP, then for the 20,000 U.S. master’s CAP.
Potential $100,000 fee:
USCIS has also indicated that if a beneficiary is selected but a change-of-status H-1B petition cannot be approved and consular notification is required, a new $100,000 fee may be imposed at the petition stage. Employers should plan carefully for eligibility and filing strategy to avoid unexpected costs.
What employers should do now:
Organizations should ensure their USCIS organizational accounts are active and properly linked with counsel, confirm authorized signatories, and work closely with immigration attorneys to determine accurate wage levels and prepare compliant registrations ahead of the March 4 opening.
With heightened scrutiny, weighted selection, and new financial exposure, early planning will be critical for employers seeking H-1B talent in FY 2027.
Mukharji v. Miller: A Landmark Ruling That Could Reshape EB-1A Adjudications
Breaking Legal Development in Immigration Law:
In a potentially groundbreaking decision that could affect thousands of denied EB-1A petitions spanning nearly two decades, a federal judge in Nebraska has ruled that the widely-used “Kazarian Two-Step Test” violates the Administrative Procedure Act (APA). The case, Mukharji v. Miller, represents a significant challenge to USCIS’s longstanding framework for evaluating Extraordinary Ability petitions and opens new avenues for relief for individuals whose EB-1A petitions were denied between 2009 and the present.
Understanding the Kazarian Two-Step Test:
Since the Ninth Circuit’s 2010 decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), USCIS has employed a two-step analytical framework for adjudicating EB-1A petitions:
- Step One: Determine whether the petitioner has submitted qualifying evidence under at least three of the ten regulatory criteria listed in 8 C.F.R. § 204.5(h)(3).
- Step Two: Conduct a “final merits determination” by evaluating the evidence in totality to assess whether the petitioner has demonstrated sustained national or international acclaim and that their achievements have been recognized in their field of expertise as required by the statute.
While this framework appeared logical on its surface, the Nebraska court’s ruling suggests that USCIS’s implementation of this test—particularly the rigid application of Step One as a threshold requirement—may exceed the agency’s regulatory authority and conflicts with the plain language of the governing statute and regulations.
The Court’s Reasoning in Mukharji v. Miller:
The Nebraska district court determined that the Kazarian framework, as applied by USCIS, is arbitrary, capricious, and contrary to law under the APA for several critical reasons:
- Regulatory Language Does Not Support a Rigid Threshold:
- The regulation at 8 C.F.R. § 204.5(h)(3) states that petitioners must submit evidence of “a one-time achievement” (major internationally recognized award) OR evidence of at least three of the listed criteria. The court found that USCIS’s rigid interpretation—requiring strict compliance with three criteria before even considering the totality of evidence—adds an extra-statutory requirement not contemplated by the regulation itself.
- Conflation of Evidentiary Standards with Merit Determination:
- The court noted that USCIS improperly uses Step One as a substantive threshold rather than an evidentiary framework. The regulation’s language suggests that meeting three criteria is about what types of evidence should be submitted, not an independent substantive test of whether someone has extraordinary ability.
- Inconsistent with the Statutory Purpose:
- The Immigration and Nationality Act’s provisions for EB-1A classification focus on individuals with “extraordinary ability” who have “sustained national or international acclaim.” The court found that USCIS’s mechanical application of Kazarian can result in denials of clearly qualified individuals whose evidence doesn’t fit neatly into USCIS’s interpretation of specific regulatory boxes, even when the totality of their achievements demonstrates extraordinary ability.
- Lack of Reasoned Decision-Making:
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By requiring strict compliance with three criteria as a threshold matter, USCIS officers may deny petitions at Step One without ever conducting the holistic assessment of extraordinary ability that the statute and regulations actually require. This approach, the court found, results in arbitrary and capricious adjudications.
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Why This Ruling Matters: Implications for Denied EB-1A Petitions:
The implications of Mukharji v. Miller are potentially far-reaching and could affect thousands of denied petitions:
Temporal Scope: 2009-2026:
The Kazarian decision was issued in 2010, and USCIS quickly adopted it as agency-wide guidance. The Nebraska court’s ruling that this framework is unlawful could theoretically impact:
- Any EB-1A petition denied from 2010 forward that applied the Kazarian framework
- Potentially even earlier denials (2009) where USCIS may have begun implementing similar analytical approaches
- All pending and future adjudications going forward
Who Should Consider Legal Action:
Individuals whose EB-1A petitions were denied should strongly consider consulting with immigration counsel if:
- The denial cited failure to meet three regulatory criteria (Step One denial)
- The denial acknowledged meeting criteria but found insufficient “final merits” without proper holistic analysis
- USCIS applied rigid, checklist-style analysis rather than evaluating the totality of achievements
- The petitioner’s field or achievements don’t fit neatly into USCIS’s narrow interpretations of specific criteria
- Substantial evidence of extraordinary ability exists but was not properly considered under a totality-of-circumstances analysis
Legal Options for Previously Denied Petitioners:
Based on the Mukharji ruling, individuals with denied EB-1A petitions may pursue several potential remedies:
1. Motion to Reopen with USCIS:
Under 8 C.F.R. § 103.5(a)(2), petitioners may file a motion to reopen based on changed circumstances or new evidence. The Mukharji decision could constitute:
- A change in the legal landscape (changed circumstances)
- New legal authority demonstrating that the previous denial was based on an improper legal standard
Timing Consideration: Standard motions to reopen must generally be filed within 30 days of the decision. However, there is no time limit for motions based on USCIS error or changed legal standards in some circumstances.
2. Federal Court Litigation:
Following the Mukharji precedent, denied petitioners may file suit in federal district court under the APA (5 U.S.C. § 706) arguing that:
- Their denial was arbitrary, capricious, and contrary to law
- USCIS applied an unlawful standard (Kazarian framework)
- The petition should be remanded for re-adjudication under the proper legal standard
Jurisdictional Requirements:
- Administrative remedies must typically be exhausted
- Suit must generally be filed within 6 years under the statute of limitations for APA claims
- Venue considerations may matter (the Nebraska decision is persuasive but not binding in other circuits)
3. New I-140 Petition:
In some cases, filing a new EB-1A petition with stronger evidence presentation and explicit arguments against rigid Kazarian application may be strategically appropriate, particularly if:
- Significant time has passed and new achievements can be documented
- The original petition was poorly prepared or presented
- Immigration status considerations require forward movement
Strategic Considerations and Challenges:
While Mukharji v. Miller represents a significant victory, several practical considerations warrant careful analysis:
Precedential Value
The Nebraska district court decision is:
- Binding only within the District of Nebraska
- Persuasive authority in other federal districts
- Subject to appeal by the government
Until there is appellate affirmation or decisions from other circuits, USCIS may continue applying Kazarian in other jurisdictions while complying with Mukharji only in Nebraska (or potentially the Eighth Circuit if affirmed).
USCIS Response:
The government has several options:
- Appeal the Nebraska decision to the Eighth Circuit Court of Appeals
- Settle individual cases to avoid broader precedent
- Revise policy guidance to abandon or modify Kazarian framework agency-wide
- Distinguish cases outside Nebraska while defending the framework elsewhere
Case-Specific Analysis Required:
Not every denied EB-1A petition will benefit from this ruling. Strong cases for legal action include:
- Denials that relied heavily on failure to meet three criteria
- Cases with substantial evidence of extraordinary ability that was not holistically considered
- Recent denials (within statute of limitations)
- Situations where immigration status or other circumstances make reopening particularly important
Cost-Benefit Analysis:
Federal litigation is expensive and time-consuming. Petitioners should carefully weigh:
- Attorney’s fees for federal court litigation ($15,000-$50,000+)
- Timeline (12-24+ months for resolution)
- Likelihood of success based on specific denial reasons
- Alternative immigration pathways
- Current immigration status and urgency
Why Denied Petitioners File Motions: The Strategic Imperative:
The decision to file a motion to reopen or federal litigation following a decision like Mukharji is driven by several compelling factors:
1. Vindication of Rights Under Proper Legal Standard:
- Many EB-1A petitioners who were denied under Kazarian had genuine extraordinary ability that was not properly recognized due to USCIS’s rigid, checklist approach. These individuals deserve adjudication under the correct legal framework that evaluates their achievements holistically.
2. Immigration Status Preservation:
For many denied petitioners, the EB-1A represented a critical immigration pathway:
- H-1B holders approaching maximum stay limitations
- L-1 visa holders facing transfer restrictions
- Individuals in pending adjustment of status who need an approved I-140
- Those seeking National Interest Waiver (NIW) backup who could strengthen their overall profile
3. Priority Date Retention:
An approved I-140 preserves a petitioner’s priority date for future immigration benefits. Reopening and approval could:
- Establish an earlier priority date in oversubscribed categories
- Provide AC21 portability benefits
- Enable premium processing and faster adjudication paths
4. Career and Professional Opportunities:
EB-1A approval provides:
- Permanent residence pathway without employer sponsorship
- Job mobility not available under employer-sponsored categories
- Professional recognition valuable for career advancement
- Ability to start businesses and pursue entrepreneurial endeavors
5. Justice and Accountability:
Many petitioners pursue reopening or litigation as a matter of principle:
- To hold USCIS accountable for unlawful adjudication standards
- To contribute to broader immigration law reform
- To establish precedent that benefits future applicants in their field
6. Financial Investment Recovery:
Denied petitioners often invested substantial resources:
- Attorney fees ($5,000-$25,000+)
- Filing fees ($700+ for I-140)
- Evidence development costs (expert letters, documentation compilation)
- Opportunity costs of delayed immigration benefits
Legal action provides an opportunity to obtain the benefit they properly invested in obtaining.
Practical Recommendations for Denied EB-1A Petitioners
If you received an EB-1A denial between 2009 and 2026, consider the following steps:
1. Obtain and Review Your Complete Case File:
Request your entire USCIS file through FOIA to understand:
- The specific grounds for denial
- Which step of Kazarian was applied
- Whether USCIS conducted holistic analysis
- What evidence was considered or overlooked
2. Consult with Experienced Immigration Counsel:
Seek an attorney who:
- Has specific experience with EB-1A litigation
- Understands the Mukharji decision and its implications
- Can analyze your specific denial in light of this new precedent
- Has federal court litigation experience if needed
3. Evaluate Your Current Immigration Status
Determine urgency based on:
- Current visa status and expiration dates
- Pending applications or petitions
- Career opportunities requiring work authorization
- Family immigration considerations
4. Assess Strength of Underlying Petition
Honestly evaluate whether:
- You have strong evidence of extraordinary ability
- Your denial was primarily due to Kazarian’s rigid application
- Additional evidence has developed since denial
- Your achievements genuinely meet the statutory standard
5. Consider Strategic Timing
Determine whether to:
- File immediate motion to reopen
- Wait for appellate developments in Mukharji
- File federal litigation
- Submit new I-140 petition
- Pursue alternative immigration pathways
6. Document New Achievements
Continue building your extraordinary ability profile:
- Publish research and papers
- Obtain awards and recognition
- Secure expert letters
- Document impact of your work
- Maintain evidence of sustained acclaim
The Broader Implications: Reforming EB-1A Adjudications:
Mukharji v. Miller represents more than just an opportunity for individual petitioners—it signals a potential shift in how USCIS approaches EB-1A adjudications:
Return to Holistic Analysis:
If USCIS abandons or significantly modifies the Kazarian framework, adjudicators would need to:
- Evaluate the totality of evidence from the outset
- Consider evidence that doesn’t fit neatly into specific regulatory criteria
- Focus on the statutory standard (extraordinary ability with sustained national/international acclaim)
- Exercise more discretion in recognizing diverse forms of achievement
Recognition of Diverse Fields and Achievement Types:
Many fields of extraordinary achievement don’t translate well into USCIS’s rigid interpretation of regulatory criteria:
- Emerging technology fields
- Interdisciplinary research
- Entrepreneurship and innovation
- Non-traditional creative endeavors
- Fields with different recognition structures internationally
A post-Mukharji framework could provide fairer evaluation for petitioners in these areas.
Reduced Arbitrary Denials:
The mechanical application of Kazarian has resulted in numerous denials of clearly qualified individuals whose evidence happened not to fit USCIS’s checklist. A more flexible, holistic approach should reduce arbitrary outcomes.
Consistency with Congressional Intent:
The EB-1A category was designed to attract and retain individuals of extraordinary ability who contribute significantly to their fields. Overly rigid interpretation undermines this purpose by excluding worthy candidates based on technicalities rather than merit.
Conclusion: A Critical Moment for EB-1A Jurisprudence
The Mukharji v. Miller decision represents a watershed moment in EB-1A immigration law. For the thousands of individuals whose petitions were denied under USCIS’s rigid application of the Kazarian framework, this ruling provides both hope and a potential pathway to justice.
However, the practical impact of this decision will depend on several evolving factors:
- Whether the government appeals and how appellate courts rule
- Whether other district courts adopt similar reasoning
- How USCIS responds in terms of policy changes
- The willingness of denied petitioners to pursue legal remedies
For individuals with denied EB-1A petitions from 2009-2026, now is the time to:
- Consult qualified immigration counsel to evaluate your specific case
- Gather your complete USCIS file to understand the denial grounds
- Assess the strength of your underlying extraordinary ability claim
- Consider strategic options including motions to reopen or federal litigation
- Act promptly given statute of limitations and other timing considerations
The Mukharji decision reminds us that administrative agencies must operate within their legal authority, and when they exceed that authority—even through long-established practices—the courts will intervene to ensure justice. For many denied EB-1A petitioners, this ruling may finally provide the fair adjudication under the proper legal standard that they deserved all along.
AC21 Adjustment Portability: Flexibility With Serious Risks
The American Competitiveness in the Twenty-First Century Act (AC21) provides a valuable benefit to employment-based green card applicants whose Form I-485 (Application for Adjustment of Status) has been pending for 180 days or more. Under AC21 portability, an applicant may change employers or jobs without restarting the green card process, provided strict legal requirements are met.
While this provision offers flexibility, it is not a free pass to jump companies or change careers. Misunderstanding AC21 portability is one of the most common reasons green card cases are denied late in the process.
How AC21 Portability Works:
To qualify for AC21 portability:
- The I-140 immigrant petition must be approved
- The I-485 must have been pending at least 180 days
- The new job must be in the same or a similar occupational classification as the job listed in the approved I-140
USCIS evaluates whether the new role is “same or similar” by analyzing:
- SOC (Standard Occupational Classification) codes
- Core job duties
- Required education and experience
- Skills, tools, and industry
- Wage level and career progression
USCIS may request confirmation of portability through Form I-485 Supplement J, and this review can happen years after the job change—often at the final adjudication stage.
Beware: Job Changes Can Break “Aging”:
Many applicants assume that once the I-140 has “aged” for 180 days, they are protected. This is a dangerous assumption.
If the new role:
- Falls under a different SOC code
- Involves materially different duties
- Represents a shift in career track (e.g., technical to managerial, or engineering to sales)
- Is with a company that lacks a bona fide job offer
USCIS may conclude that AC21 portability does not apply. In such cases, the original I-140 may no longer support the I-485—resulting in denial, even after years of waiting.
Common High-Risk Moves:
Applicants should be especially cautious when:
- Moving from a third-party consulting role to an internal corporate role
- Switching from a hands-on technical position to a people-management role
- Accepting a job with a significantly different title or industry
- Joining a startup without documented ability to employ the beneficiary long-term
Even if wages increase or the move seems like a promotion, USCIS focuses on occupational similarity, not job prestige.
Best Practice: Get Legal Review Before Moving:
AC21 portability is powerful, but it is also fact-specific and unforgiving. Once a problematic job change is made, it is often impossible to fix retroactively.
Before changing employers or job roles while your I-485 is pending, a careful legal review of:
- SOC codes (old vs. new)
- Detailed job descriptions
- Employer viability
- Long-term job offer documentation
can mean the difference between a successful green card approval and a devastating denial.
AC21 offers flexibility—but only when used carefully.
Congress Passes FY 2026 Funding Bill; DHS Faces Short-Term Funding Deadline as Immigration Services Continue
Congress has approved a fiscal year (FY) 2026 government funding package that finances most federal agencies through September 30, 2026, while leaving the Department of Homeland Security funded only on a short-term basis through February 13, 2026. The limited DHS funding reflects ongoing negotiations in Congress over enforcement limits and accountability measures related to U.S. Immigration and Customs Enforcement.
Donald Trump has signed the legislation into law, averting a broader government shutdown. Although a brief partial shutdown began after the prior spending measure expired on January 31, immigration-related government functions remained largely unaffected during that period.
According to congressional sources, immigration benefits processing continued without disruption. This included adjudication and processing of labor certification applications, labor condition applications (LCAs), and prevailing wage determinations handled by the U.S. Department of Labor—a critical point of reassurance for employers and foreign nationals navigating time-sensitive immigration filings.
Potential impact if DHS funding lapses after February 13:
If Congress fails to reach an agreement before the February 13 deadline, a lapse in DHS appropriations could create uncertainty for certain immigration enforcement and operational functions. However, based on past shutdowns, core immigration benefits processing—particularly fee-funded services such as USCIS petition adjudications—would likely continue, while discretionary enforcement activities could face constraints.
Employers, foreign nationals, and immigration stakeholders are advised to monitor developments closely as negotiations continue, particularly those with pending or upcoming filings that involve DHS components.
Asylum Restrictions Tighten as Fraud and Security Scrutiny Increases
U.S. asylum policy has entered a significantly more restrictive phase, with new rules aimed at excluding applicants deemed public health or national security risks while sharply increasing enforcement against fraudulent asylum claims.
Under the updated framework, immigration authorities now have broader discretion to deny asylum or terminate protection where an applicant is linked to serious criminal activity, public health concerns, or conduct viewed as a threat to national security. These determinations can be based on arrest records, intelligence indicators, immigration violations, or patterns suggesting abuse of the asylum system.
At the same time, federal agencies have intensified investigations into asylum fraud, including fabricated persecution claims, coached narratives, fraudulent affidavits, and misuse of country-conditions reports. Applicants found to have knowingly submitted false information may face permanent bars to immigration benefits, removal proceedings, and potential criminal exposure.
These changes reflect a policy shift from primarily humanitarian screening to a dual-track system focused equally on enforcement and deterrence. While legitimate asylum seekers remain protected under U.S. and international law, the burden of proof has increased, and credibility findings are being scrutinized more aggressively than in prior years.
For asylum applicants, the message is clear: accuracy, consistency, and documentary support are critical. Any misrepresentation—intentional or not—can now have lasting consequences beyond a single application.
As enforcement expands, individuals considering asylum should seek qualified legal counsel before filing to ensure compliance with the evolving rules and to avoid mistakes that could permanently jeopardize their immigration future.
Sincerely,
Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C. Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
