Why That “Very Few at the Top” Line Is Showing Up in EB‑1A Denials and What to Do Next
In recent months, more EB‑1A applicants have opened their denial notices and read the same unsettling line:
“Congress intended the classification of extraordinary ability to be given to those very few at the top of their field of endeavor.”
On the surface, this reads like a restatement of the law; in practice, it signals that your petition failed the so‑called “final merits” review, even if you met three or more evidentiary criteria. Understanding why this language is appearing, what it means for your case, and how you can respond is critical for anyone navigating an EB‑1A denial today.
What that sentence is really doing
USCIS uses a two‑step test for EB‑1A petitions. First, the officer checks whether the applicant satisfies at least three of the ten regulatory criteria, such as major awards, publications, original contributions of major significance, or leading roles in distinguished organizations. Second, they perform a “final merits” assessment: does the entire record show that the person has sustained national or international acclaim and is among the small percentage at the very top of their field?
When officers lean on the “very few at the top of their field” line, they are usually saying that the evidence ticks boxes but does not convincingly show elite‑level impact. The criteria may be met on paper, but the narrative fails to prove that the applicant is among the top tier of practitioners in that specific field. This is the heart of the “final merits” hurdle, and it is where many strong technical and research profiles quietly stumble.
Why this matters now
Approval rates for EB‑1A have stayed high overall, but the share of cases failing at the final‑merits stage after the criteria are met has grown. Many applicants now see denials that say things like “you have not sustained acclaim recently,” “you are not among the very top,” or that Congress intended the category for a small elite, even though they have three or four criteria, strong citations, and multiple media mentions. The result is a growing sense of unpredictability: you can check all the boxes and still lose.
This shift has coincided with increased scrutiny of the “Kazarian”‑style final‑merits framework, which USCIS has used for years but has recently applied in a more rigid way. USCIS now explicitly states that if the applicant meets the criteria but still does not seem to be “among the very few,” it can deny the petition. The language in your denial notice is simply the boilerplate version of that test.
In parallel, several federal courts have begun to question whether USCIS can impose this kind of de facto final‑merits standard without formal rulemaking. Recent rulings have held that the agency cannot create a new, substantive standard through informal guidance or internal memoranda alone. This legal pushback is exactly why some immigration firms are now reaching out to applicants who received denials with the “very few at the top” line, they are trying to build a body of cases that can be used either in litigation or in broader advocacy against how USCIS interprets “extraordinary ability.”
What you should do if you see this line
If your denial notice opens with that language, do not treat it as a verdict on your overall worth. Instead, treat it as a signal about how USCIS is reading your record. In practice, seeing “very few at the top of their field” usually means one of three things:
