The Final Merits Analysis
In my experience speaking with aspiring EB-1A applicants, one of the most misunderstood parts of the EB-1A process is the final merits determination.
Many applicants believe the EB-1A analysis works like this:
Step 1: Meet 3 evidentiary criteria
Step 2: Submit a completely different set of “extra” evidence for final merits
That is not how USCIS generally evaluates EB-1A petitions.
Under the framework established by Kazarian v. USCIS, EB-1A adjudication is a two-step process, but both steps analyze the same evidentiary criteria.
Here’s how it actually works:
STEP 1: Quantitative Analysis
At the first stage, USCIS asks a relatively objective question:
“Has the petitioner submitted evidence that satisfies at least three regulatory criteria?”
This is largely a threshold inquiry based on the plain language of the regulations.
For example:
- Did the applicant judge the work of others?
- Were they featured in published material?
- Did they perform in a leading or critical role?
- Do they have original contributions of major significance?
At this stage, USCIS is not yet deciding whether the person is truly at the top of the field. The officer is simply determining whether the evidence technically satisfies the criteria.
STEP 2: Qualitative Final Merits Determination
After determining that at least three criteria are met, USCIS performs a second analysis.
This is where the officer asks:
“Does the evidence supporting these criteria actually demonstrate sustained national or international acclaim and that the beneficiary is among the small percentage at the top of the field?”
This stage is qualitative rather than quantitative.
Importantly, USCIS is generally reassessing the quality and significance of the same evidence already used to satisfy the criteria.
In other words:
- weak judging evidence may satisfy the judging criterion but still fail to show extraordinary ability;
- minor media mentions may technically qualify as published material but carry limited weight;
- routine leadership roles may satisfy a criterion without demonstrating top-of-field distinction.
The final merits determination is therefore not a separate evidentiary category.
This is one of the biggest strategic mistakes I see in EB-1A filings: treating final merits as a “miscellaneous leftovers section” for evidence that did not clearly satisfy any criterion.
Examples often include:
- committee participation,
- conference attendance,
- advisory activities,
- speaking engagements,
- being quoted in articles,
- networking memberships,
- internal recognition.
These types of evidence can still be useful if they corroborate or contextualize an existing criterion argument, but they are generally not persuasive when submitted independently of the criteria.
The final merits determination is not a second chance to introduce unrelated evidence.
It is USCIS asking whether the evidence supporting the criteria is genuinely extraordinary.