How to Prove "Final Merits" for EB-1A: Understanding USCIS's Second-Step Analysis
Meeting three criteria is just the beginning here's what happens next
Quick answer
The "final merits determination" is USCIS's second step in evaluating EB-1A petitions. After determining whether you meet at least three of the ten regulatory criteria, USCIS evaluates whether the totality of your evidence demonstrates you are truly among the small percentage at the very top of your field with sustained national or international acclaim. Meeting three criteria is necessary but not sufficient for approval.
Frequently Asked Questions
Q: Can USCIS deny me if I clearly meet three criteria?
A: Yes. Meeting three criteria qualifies you for step two review, but the final merits determination evaluates whether your overall record demonstrates extraordinary ability. Petitioners who meet criteria technically but lack sufficient distinction can be denied.
Q: How do I prove "sustained" acclaim if I am early in my career?
A: USCIS explicitly states there is no age requirement or minimum career length. You can demonstrate sustained acclaim by showing continued recognition from the time your work first gained attention through the present, even if that period is relatively short.
Q: What if my field is small or obscure?
A: USCIS evaluates you relative to your specific field. A small field means the pool of top performers is also small. Provide evidence explaining the scope of your field and your standing within it.
Q: Are four or five criteria better than three?
A: Meeting more criteria can strengthen final merits analysis, but quality matters more than quantity. Three rock-solid criteria with excellent evidence beats five weak ones.
Q: How much do expert letters influence final merits?
A: Significantly. Expert letters provide the contextual analysis that helps USCIS understand why your achievements matter. Weak letters are a common reason for denial.
Q: Can comparable evidence help in final merits?
A: Yes. If standard criteria do not fit your field, comparable evidence allows you to present alternative proof. The same quality standards apply—comparable evidence must demonstrate top-tier standing.
Q: What is the "preponderance of evidence" standard?
A: USCIS uses a "more likely than not" standard. Your evidence need not prove extraordinary ability beyond all doubt, but it must make extraordinary ability more probable than not.
Q: How long should my petition letter be?
A: Length varies, but effectiveness matters more than page count. Cover every criterion you claim and provide the contextual analysis needed for final merits. Well-organized, clearly argued petitions of 15–30 pages are common.
Q: If I get an RFE, does that mean I failed final merits?
A: Not necessarily. RFEs often request additional evidence to support the analysis. A thoughtful RFE response that strengthens your case can lead to approval.
Q: Should I claim every criterion I might arguably meet?
A: Not always. Claiming criteria with weak evidence can undermine your overall credibility. It is often better to claim fewer criteria with strong evidence than to overreach.
