O-1A final merits determination: why meeting three criteria is not enough

The two-step framework

Most people preparing an O-1A petition focus on the criteria: pick three of the eight, gather the evidence, file. That framing is correct for step one of how USCIS actually evaluates the petition, but it skips step two entirely.

The two-step framework comes from Matter of Kazarian, a 2010 Ninth Circuit decision that USCIS adopted into its Policy Manual. Step one asks whether the evidence satisfies the regulatory criteria. Step two, the final merits determination, asks a different question: does the totality of the evidence show that the applicant has "extraordinary ability" as the statute defines it? That definition requires a level of expertise placing the applicant among the small percentage who have risen to the very top of their field of endeavor.

An applicant can clear step one and still be denied at step two. This is not a rare edge case. It is the most common failure mode for O-1A petitions with technically complete evidentiary records.

What step two actually asks

The final merits determination is not a re-examination of whether the criteria are met. It takes that as given and then asks a broader question: viewed in totality, does this record show someone at the very top of their field?

USCIS officers are looking for evidence that the field itself recognizes this person as exceptional. Not just that they are good at their work, not just that they have a track record, but that peers, institutions, or the broader professional community have identified them as operating at an unusual level. The question is comparative: exceptional relative to whom?

This is where records that check the criteria boxes often fall short. A criterion can be satisfied with evidence that clears a relatively low threshold. A published article in a peer-reviewed journal satisfies the authorship criterion regardless of whether that journal is a top-tier publication or a minor one, and regardless of how many times the article has been cited. At step one, that counts. At step two, an officer reading a record full of low-impact publications will find it hard to conclude the applicant is among the top fraction of practitioners in their field.

Where records fail at step two

There are four patterns that consistently produce step-two denials.

Evidence that technically qualifies but lacks comparative context. An award satisfies criterion one regardless of how selective it is. A salary satisfies the high-remuneration criterion as long as it exceeds the median. But an award given to several hundred people per year in a large field does not show the applicant is among the very top. A salary in the 55th percentile does not show the same thing as a salary in the 95th percentile. The criteria can be met without the evidence establishing top-tier standing.

Support letters that describe the applicant rather than position them. "Dr. Smith is an outstanding researcher whose work on X has made significant contributions to the field" is a description. It tells the officer what the letter writer thinks of the applicant. What it does not do is tell the officer where the applicant stands relative to the field. A letter that says "Dr. Smith's citation impact places them in the top 5% of researchers at a comparable career stage in this sub-field, based on my experience reviewing candidates for [relevant award/fellowship]" is positioning. That distinction is the difference between a letter that helps at step two and one that does not.

Records with no comparative data. If there is nothing in the record that allows the officer to compare the applicant to peers, the step-two analysis has nothing to anchor to. Comparative salary data (the 90th percentile figure for the relevant occupation and geography, not just "above average"), citation rankings in the relevant sub-field, acceptance rates for programs or awards the applicant has been admitted to: these are the materials that make the final merits determination possible.

A profile that reads as a strong professional rather than an exceptional one. This is the hardest one to diagnose before filing. A record can have solid publications, a good salary, a panel judging appearance, and an award, and still tell the story of a successful mid-career professional rather than someone at the very top. The difference is usually in the quality and specificity of the evidence for each criterion, not in whether criteria are technically met.

What holds up at step two

Evidence that survives final merits scrutiny tends to share a few characteristics.

It is specific about standing. Letters name the applicant's relative position in the field. Press coverage identifies the applicant as an authority or innovator, not just a participant. Awards come with context about how many were issued and who else received them. Salary data shows where the applicant falls in the distribution for their occupation, not just that they earn above the median.

It shows that others have noticed. At step two, USCIS is looking for external validation of the applicant's standing. Invitations to present at major conferences, citations of the applicant's work by other practitioners, requests to serve as a peer reviewer or judge, advisory board appointments: these are signals that the field has taken note of this person. The officer cannot take the applicant's word for their own extraordinary ability. The record needs to show that the field has already reached that conclusion.

It is consistent across criteria. A record where the salary evidence suggests someone in the 60th percentile, the press coverage is from trade publications that cover everyone in the space, and the judging appearance was a minor local competition will not hold together at step two even if each criterion is technically satisfied. The criteria should be telling the same story.

The January 2025 policy update and step two

USCIS updated the O-1A Policy Manual in January 2025 (Policy Alert PA-2025-01). The update added examples specific to critical and emerging technology fields and clarified what qualifies as a "critical role." It did not change the two-step evidentiary framework. The final merits determination continues to apply to all O-1A petitions.

One practical effect of the update: it expanded the range of evidence that can satisfy individual criteria for technology and AI professionals. This makes it easier to clear step one for applicants in those fields. It does not reduce the step-two burden. Meeting the criteria more easily means the step-two analysis becomes more important, not less, because more petitions will arrive at step two and the distinguishing question will be the quality and context of the evidence.

Putting the record together

The practical implication is that building an O-1A record is not the same as checking boxes. Each piece of evidence should be evaluated both for whether it satisfies its criterion and for what it says about the applicant's standing in the field. Evidence that checks a box but adds nothing to the step-two picture is weak evidence. Evidence that both satisfies a criterion and demonstrates top-tier standing is what the record needs.

If you are evaluating whether your record is ready for an O-1A filing, or responding to an RFE that challenged your petition at the final merits stage, see how USIA approaches O-1A petitions or schedule a case assessment.