I-9 compliance - how employers stay audit-ready with Form I-9
8 mins read | Aug 11, 2026
The final merits determination is the second step of a two-part review that USCIS uses for extraordinary-ability cases. After the officer counts how many regulatory criteria your evidence satisfies, the final merits determination asks a different question: taken as a whole, does the record actually show sustained national or international acclaim and place you among the small percentage at the top of your field? A petition can clear the counting step and still fall short here, which is why applicants who "met the criteria" sometimes read a denial and cannot understand what went wrong.
This post explains the two-step logic in plain English, where it comes from, and what it means for how a strong petition is built. If you have heard that meeting three of ten criteria is necessary but not sufficient, this is the concept that fills the gap. For the full eligibility picture, the EB-1A visa guide cover the criteria in depth, and this post links up to them rather than repeating them.
What the final merits determination is
The final merits determination is the stage where an officer stops tallying boxes and weighs the totality of your evidence against the legal standard for the category. For an EB-1A, that standard is extraordinary ability, meaning a level of expertise indicating you are one of the small percentage who have risen to the very top of your field, with sustained acclaim to match. Counting criteria tells the officer whether you crossed a threshold. The final merits step tells the officer whether the evidence, read together, tells a convincing story of top-of-field standing.
The two questions are related but distinct. One is quantitative: how many criteria did you document? The other is qualitative: what does the whole record say about where you sit in your field? You can answer the first question with a "yes" and still get a "no" on the second, because volume of evidence is not the same as weight of evidence.
The two-step framework and where Kazarian came from
The two-step approach comes from Kazarian v. USCIS, a federal appeals decision that reshaped how these petitions are read. Before Kazarian, officers sometimes loaded extra requirements into the individual criteria, effectively raising the bar at the counting stage. The court corrected that and split the analysis cleanly into two steps.
Step one is the counting step. You meet it by documenting at least three of the ten regulatory criteria, or by showing a qualifying one-time major achievement such as a top-tier internationally recognized award. At this stage the officer decides whether each piece of evidence fits the plain language of the criterion, not whether it proves you are extraordinary.
Step two is the final merits determination. Here the officer takes all of the evidence, including the material that satisfied the criteria, and weighs it together to decide whether it demonstrates the required sustained acclaim and top-of-field standing. The table below lines up what each step actually asks.
| Step one: counting the criteria | Step two: final merits determination | |
|---|---|---|
| Core question | Do you meet at least three of ten criteria, or hold a qualifying major award? | Does the whole record show sustained acclaim and top-of-field standing? |
| How it is judged | Item by item, against the plain language of each criterion | The totality of evidence, weighed together |
| Nature | Quantitative threshold: counting boxes | Qualitative judgment: weighing the record |
| Source | The ten regulatory criteria | Kazarian v. USCIS |
| Standard of proof | Preponderance of the evidence | Preponderance of the evidence |
Both steps run under the same standard of proof: preponderance of the evidence, which means more likely than not. The officer is not looking for certainty. They are asking whether the record, on balance, makes top-of-field standing the more probable conclusion.
Why a case that meets three criteria can still be denied
This is the part that surprises applicants. Meeting three criteria clears step one, but step one is a gate, not the finish line. At the final merits determination, the officer can acknowledge that you satisfied three criteria and still conclude that the evidence as a whole does not rise to the level of sustained national or international acclaim.
A few patterns tend to produce that outcome. Evidence can be technically qualifying but thin: three memberships, published articles, and a judging role that each check a box while collectively describing a solid professional rather than someone at the top of the field. Letters can be numerous but generic, repeating that you are excellent without explaining how your work changed the field or how your standing compares to others. Media coverage can exist but focus on your employer or product rather than on you as an individual. In each case the counting step passes and the weighing step does not, because the record shows competence without showing distinction.
The gap between the two steps is the gap between "I documented three criteria" and "the record proves I am among the very top." Closing it is a matter of quality and context, not of adding a fourth or fifth criterion.
What top-of-field evidence looks like at final merits
Because the final merits step weighs quality and context, the evidence that carries it does more than satisfy a criterion. It shows scale, independence, and impact. Recommendation letters carry weight when they come from independent experts who can point to specific contributions and explain why those contributions matter to the field, rather than from close collaborators offering praise. Published work carries weight when citation counts, adoption, or downstream use show that others built on it. Awards carry weight in proportion to the size and selectivity of the pool they were drawn from.
Context is what turns a fact into evidence of standing. A membership means more when the officer can see how selective the body is and who else belongs. A speaking role means more when the venue is one the field recognizes as reserved for leading voices. The same document can read as a checked box or as proof of acclaim depending on whether the petition supplies the comparison that shows where you sit relative to your peers. The EB-1A eligibility criteria post walks through how each of the ten criteria can be documented for weight, not just for the count.
Building a petition for the final merits step
The practical takeaway is that strong petitions are built for the weighing step, not just to check three boxes. Once you accept that the officer will step back and read the whole record, the strategy shifts from collecting the minimum number of qualifying items to assembling evidence that reads as a coherent case for top-of-field standing.
That shift shows up in concrete choices. Lead with your strongest criteria and give them room, rather than spreading effort evenly across the bare minimum. Ask recommenders to explain impact and comparison, not to restate your resume. Include the context an officer needs to gauge selectivity and reach, since evidence without context invites a skeptical reading at the final merits stage. And frame comparable evidence, where a criterion does not fit your field neatly, so the officer sees why it demonstrates the same level of acclaim the standard criterion would. Founders and business owners face a version of this that is worth a dedicated read, since their evidence often comes from company outcomes rather than traditional academic markers.
If you are assessing whether your record will hold up at the final merits determination rather than just clearing the counting step, a focused review can tell you where the weight is and where the gaps are. Tukki is a U.S. immigration provider that builds EB-1A petitions with dedicated attorney support and full case visibility, and our team can read your evidence the way an officer will at step two. If you want a clear assessment of how your case reads as a whole, we can map it with you.