EB-1A final merits determination: what USCIS decides after three criteria are met

What are the two steps?

Step one asks a narrow question: which pieces of evidence objectively fit the wording of a regulatory criterion, such as judging or scholarly articles? The officer needs either a one-time major international award or at least three of the ten criteria, or comparable evidence for them. At this step the officer does not decide whether the person is at the top of the field.

Step two, the final merits determination, takes the petition in its entirety. The same evidence is looked at again, now for what it says about the person's standing. Meeting three criteria at step one does not by itself establish extraordinary ability.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.1; USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.2 (final merits determination)

What must the record show at the final merits step?

The regulation defines extraordinary ability as a level of expertise showing that the person is one of the small percentage who have risen to the very top of the field. The final merits question has two linked parts: sustained national or international acclaim, and achievements recognized in the field, together showing that top-of-the-field standing.

The Policy Manual also lists two further requirements that apply throughout: the person must be coming to continue work in the area of extraordinary ability, and their entry must substantially benefit the United States in the future.

Sources: 8 CFR 204.5(h)(2); USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.2 (final merits determination)

What is the preponderance of the evidence standard?

The officer applies the preponderance of the evidence standard at both steps. The Administrative Appeals Office of USCIS, citing its earlier decision Matter of Chawathe, describes it as showing that the claim is more likely than not true, and says both the quantity and the quality of the evidence count, including relevance, probative value and credibility.

The burden is on the petitioner, the person or employer filing Form I-140. For a self-petitioner, that is the beneficiary.

Sources: Matter of Dhanasar, 26 I&N Dec. 884, 889 n.8 (AAO 2016); USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.2 (denials and requests for evidence); USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.3 (former O-1 nonimmigrants)

What does "sustained" acclaim mean?

Sustained means the acclaim has been maintained. There is no age limit and no fixed time frame, so someone early in their career can show it. If recognition came from a particular past achievement, the officer asks whether the person has kept a comparable level of acclaim since.

Older evidence can count, but its age is weighed. For example, current membership in an association is not required for that criterion, but if nothing recent is in the record, the time since may count against sustained acclaim at this step.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section A.1 (sustained acclaim); USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.2 (final merits determination)

What does the officer weigh?

At this step the officer may consider any relevant evidence in the record, even if it fits no criterion and was not offered as comparable evidence. Some evidence weighs more favorably on its own; some is more persuasive alongside other evidence. The Policy Manual gives examples that can help, while noting that none is required:

• Articles in highly ranked journals or published proceedings, shown for example by impact factor, especially as the most significant, senior or sole author.
• A total citation rate that is high relative to others in the field, such as a high h-index. This is less relevant early in a career, and the petitioner should explain how any index was calculated.
• Employment or research at leading institutions, such as US universities with high or very high research activity, comparable foreign universities or highly ranked universities.
• Unsolicited invitations to speak or present at nationally or internationally recognized conferences.
• Being named as an investigator, scientist or researcher on a peer-reviewed, competitively funded US government STEM grant.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.2 (final merits determination)

Why context matters more than volume

The petitioner must explain the significance of each piece of evidence and how it shows sustained acclaim. A large volume of documents may still fail to persuade, while a single strong piece can carry a criterion. Judging and scholarly articles, for example, satisfy step one regardless of caliber, so at step two the officer asks whether that judging or publishing marks someone at the top of the field.

An officer may not deny because one expected type of evidence, such as press coverage, is missing if the petitioner submitted other evidence meeting three criteria that shows the person is in fact extraordinary. The decision turns on the type and quality of evidence submitted.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.2 (final merits determination); USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.1

How are letters of support weighed?

Letters carry some weight but should not be the cornerstone of the case. They should explain in specific terms why the writer considers the person extraordinary and be backed by documents in the record. Letters that repeat USCIS definitions or make broad statements are generally not persuasive.

The officer also considers the writer's relationship to the person. Someone with sustained national or international acclaim would generally be recognized well beyond their own circle of personal and professional acquaintances.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.3 (letters of support)

What does "continue to work in the area" mean?

No job offer or labor certification is required, but the petition must include clear evidence that the person is coming to continue work in their area of expertise. The regulation names letters from prospective employers, prearranged commitments such as contracts, or the person's own statement detailing their plans.

Problems arise when the planned work differs from the area of acclaim. The Policy Manual's main example is an athlete who plans to coach: competing and coaching generally use different skills. Officers can still find coaching within the area of expertise where the person has recent acclaim as an athlete and has sustained acclaim as a coach or manager at a national level. Since an August 2025 update, USCIS does not treat a male athlete with acclaim in men's sports who seeks to compete in women's sports as continuing in his area.

Sources: 8 CFR 204.5(h)(5); USCIS Policy Manual, Volume 6, Part F, Chapter 2, Sections A.2 and A.3

What about the substantial benefit requirement?

Neither the statute nor the regulation defines "substantially benefit", and it has been interpreted broadly. It is a fact-dependent assessment with no standard rule, and the Policy Manual says a request for evidence (RFE) may be appropriate if the officer is not yet satisfied.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 2, Sections A.2 and A.3

Does an earlier O-1 visa petition help?

It is relevant and can indicate eligibility, but it does not decide the EB-1A petition. Each petition is judged on its own merits, and the standards differ, especially in the arts. Where possible, an officer denying an EB-1A petition for a former O-1 holder should briefly explain why.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.3 (former O-1 nonimmigrants)

What happens if the officer is not satisfied?

If more evidence is needed, the officer may issue an RFE. The Policy Manual tells officers to explain the deficiencies and, if possible, give examples of persuasive evidence, rather than just restating the requirements.

If the officer finds the standard is not met, the officer must give specific reasons why the petitioner has not shown extraordinary ability by a preponderance of the evidence, not general assertions. The Policy Manual lists Form I-290B, Notice of Appeal or Motion, among the forms related to this classification.

Sources: USCIS Policy Manual, Volume 6, Part F, Chapter 2, Section B.2 (denials and requests for evidence)

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