EB1 Kazarian Analysis for EAs and OPRs

The EB1, Extraordinary Ability (EA) and Outstanding Professor / Researcher (OPR) category has high standards for successfully obtaining approval. These two EB1 categories have become even more difficult, in large part due to a change in the way supporting evidence is analyzed by the USCIS. An explanation of the current approach is set forth in a December 22, 2010 USCIS memorandum, relying on a case entitled Kazarian v. USCIS. The history of USCIS changes and the current, controversial, two-step analysis described in the USCIS memorandum are presented here for the benefit of MurthyDotCom and MurthyBulletin readers.

Kazarian Case Analysis Reflected in Memorandum

The USCIS policy memo entitled, Evaluation of Evidentiary Criteria in Certain I-140 Petitions  provides instructions to USCIS adjudicators of Extraordinary Ability, Outstanding Professor or Researcher, and Exceptional Ability I-140 petitions.

This memo outlines a two-step adjudication analysis based on the decision by the Court of Appeals for the Ninth Circuit in Kazarian v. USCIS (PDF, 62KB). The USCIS issued a final memo on December 22, 2010. An interim memo previously issued on April 18, 2010 contained the same guidelines for adjudication of the affected types of petitions.

Two-Step Analysis: More Denials

The memo instructs USCIS adjudicators to use an approach to evidence evaluation referenced in the Kazarian case. This review consists of a “two-part approach where the evidence is first counted and then considered in the context of a final merits determination.”

The USCIS first evaluates the evidence presented to determine whether the initial evidentiary requirements are met – fitting within the listed categories of evidence pertinent to the requested immigration category. These categories, such as “evidence of the foreign national’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field” are explained in more detail in our news article, Can I Benefit Under the Current EB1 Priority Dates (15.Sep.2006).

The second part of the analysis, essentially, involves reviewing the evidence as a whole to determine whether the foreign national meets the overall eligibility standard for the category. Since the Kazarian case, and the issuance of the interim and final memos, USCIS adjudicators and the Administrative Appeals Office (AAO) have been applying these instructions narrowly, interpreting them as requiring the application of the second part of the “Kazarian approach” in every case. This has resulted in large numbers of petition denials that potentially were approvable prior this change.

USCIS Improperly Relies on Kazarian’s Dicta

The memo purports to base the guidance it contains on the Kazarian decision. The two-step framework for the analysis, however, was established earlier by other federal court decisions. The court in the Kazarian case did not have to apply two steps, as it found that the petitioner did not meet the required initial evidentiary criteria in the Extraordinary Ability category. As such, the holding in that case was not related to the two-step adjudication framework. Instead, the court warned that the USCIS was not to “unilaterally impose novel substantive or evidentiary requirements.” This essentially means that the USCIS is supposed to review the evidence under the legal and regulatory criteria, as stated, and not put their own “spin” on the requirements by relying on the decision’s dicta. In the Kazarian case, the court did not reach the second step in the analysis, as the petitioner did not sufficiently meet the initial evidentiary criteria.

The USCIS not only seems to misinterpret the guidance provided by the Kazarian court, but expands its application beyond Extraordinary Ability petitions. The framework provided in the memo may not fit all of these types of petitions as they have similar, but not identical evidentiary requirements.

USCIS’s Improper Application of Second Step in its Analysis

The recent trend involves a final adjudication from the USCIS using the second step in its analysis in most, if not all, cases, without regard to the findings made during the initial review of the evidence. In many cases where the USCIS determines that the petitioner meets the initial evidentiary requirements, denials still are issued. This is due to the second step, wherein the USCIS often determines that the evidence, taken in totality, does not show that the petitioner has reached the level of accomplishment required for the requested classification. Many immigration lawyers have voiced disagreement with this approach.

Conclusion

Adjudication trends since the issuance of the April 18, 2010 interim memo concern many in the immigration community. The USCIS interpretation of the Kazarian decision has altered long-standing adjudication principles. For those applying in the categories addressed by the memo, it should be noted that we at the Murthy Law Firm have used the USCIS interim memo and the Kazarian case to benefit our clients through careful adjustments in the manner the initial case evidence is presented to the USCIS, and in devising strategies to help our clients.

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