Tag Archive for: final merits determination

Cyrus Mehta

Scripps v. Jaddou Offers Nuanced Interpretation of “Final Merits Determination” in Reversal of  EB-1B Denial for Outstanding Researcher

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By Cyrus D. Mehta and Jessica Paszko*

Noncitizen professors or researchers can more easily seek to obtain permanent residence as “outstanding professors and researchers” in light of the District Court of Nebraska’s recent decision in Scripps v. Jaddou.

Pursuant to INA § 203(b)(1), noncitizens may be eligible for permanent residency under the employment-based first preference (EB-1B) category if:

  1. they are recognized internationally as outstanding in a specific academic area,
  2. they have at least 3 years of experience in teaching or research in the academic area, and
  3. they seek to enter the United States-
    1. for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
    2. for a comparable position with a university or institution of higher education to conduct research in the area, or
    3. for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

While the statute nor the regulations define what it means to be “recognized internationally as outstanding in a specific academic area,” the applicable regulation at 8 C.F.R. § 204.5(i)(3)(i)–(ii) states:

  1. Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following:
    1. Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field;
    2. Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members;
    3. Published material in professional publications written by others about the alien’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
    4. Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
    5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
    6. Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;
  2. If the standards in paragraph (i)(3)(i) of this section do not readily apply, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

However, the petitioner will not be victorious just by way of establishing that the prospective beneficiary satisfies at least two of the above regulatory criteria by a preponderance of the evidence. Once United States Citizenship and Immigration Services (USCIS) determines that two regulatory criteria have been met, it conducts a second layer of review – the “final merits determination” pursuant to Kazarian v. USCIS (see our blog) – to determine whether the beneficiary may be classified as an outstanding professor or researcher.

On December 12, 2023, the District Court of Nebraska rendered its decision in the case of Scripps v. Jaddou. At issue was whether the USCIS properly denied the Scripps’ petition by finding the prospective beneficiary, Julia Lum, did not qualify for an EB-1B visa even though she satisfied the regulatory criteria. Scripps College challenged the USCIS’s denial under the Administrative Procedure Act (APA) in the District Court of Nebraska. A decision by the USCIS will be upheld if challenged in federal district court under the APA unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” (5 U.S.C. § 706(2)(A)). An agency decision is arbitrary and capricious if, for instance, “the agency acted outside the bounds of reasoned decision making” or provided an explanation “that runs counter to the evidence.”

The USCIS found that Dr. Lum satisfied three of the regulatory criteria, namely (1) she participated as the judge of the work of others in the same or allied academic field of art history; (2) she made original contributions or scholarly research contributions to art history; and (3) she authored scholarly books or articles in scholarly journals with international circulation in art history. However, it denied EB-1B classification because the evidence under the “final merits determination” did not show that her work impacted the field of art history to an extent which shows “that she is internationally recognized as an outstanding researcher.” According to the USCIS, the record showed that Dr. Lum met the plain language of three regulatory criteria, but it did not show that “she is strong in any of them.” The Court pointed out that throughout the final merits analysis, “USCIS repeatedly stated that the evidence presented by Scripps was insufficient to establish Dr. Lum is recognized internationally as outstanding; however, it never stated what was required to establish international recognition as an outstanding professor or researcher.” For instance, in its final merits determination analysis, the USCIS focused on the number of times Dr. Lum’s work had been cited and found that the evidence failed to demonstrate that scholars referenced Dr. Lum’s work ‘to an extent that would establish international recognition as outstanding in the field.’

Perhaps, the USCIS did not find compelling the six citations that Dr. Lum’s publication had garnered. However, the expert letters submitted by Scripps demonstrated that Dr. Lum’s work was published in prestigious journals in art history and that six citations in a ‘low citation field’ was a high number of citations in the field. This evidence clearly contradicts the USCIS Policy Manual’s own example of a situation where such evidence should sway the adjudicating officer’s totality analysis as “evidence demonstrating that the total rate of citations to the beneficiary’s body of published work is high relative to others in the field . . . may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary enjoys international recognition as outstanding.” This excerpt from the Policy Manual was cited by the Court at the outset of its decision in Scripps.

Ultimately, the Court found that the “unexplained internal inconsistencies” reflect that the USCIS failed to ‘articulate a satisfactory explanation for its action including a rational connection between the facts and the choice made.’ In addition to the internal inconsistent findings, the Court concluded, as did the Kazarian court, that USCIS imposed “novel evidentiary requirements.” The USCIS imposed such novel evidentiary requirements when it found that Scripps failed to show that Dr. Lum’s ‘work is being taught at more institutions than any other scholar’s works’ and on that basis concluded that this did not demonstrate Dr. Lum’s ‘impact on the academic field exceeds that of any other researcher.’ The USCIS further imposed novel evidentiary requirements when it acknowledged that Dr. Lum received funding in support of her research but found that the record did not support that Dr. Lum received funding in excess of other researchers or that she received her funding in recognition of her outstanding achievements. The Court determined that these findings were not supported by the record, and that the regulations and USCIS policy manual do not require the petitioner to show the beneficiary’s contributions must exceed that of other researchers or professors in the field. The imposition of such novel evidentiary requirements rendered the USCIS’s denial of Scripp’s petition arbitrary and capricious.

Upon applying the evidence in the record to the regulatory criteria and the guidelines in the policy manual, the Court concluded that Scripps established by a preponderance of the evidence that Dr. Lum qualified for international recognition as an outstanding professor or researcher in the field of art history, and reversed the USCIS’s denial. The Court was compelled by the nine letters that were submitted from prominent experts in the field of art history, who spanned three continents, and uniformly agreed that Dr. Lum is internationally recognized as an outstanding researcher in her field. The experts provided evidence of Dr. Lum’s original contributions, citations relative to the field of art history, high level of grant funds relative to others in the field, the importance of Dr. Lum’s original contributions and publications in prestigious journals, invitations (solicited and unsolicited) to present and attend conferences, and reliance on Dr. Lum’s work to teach students at the world’s highest ranked institutions.

This decision teaches how we should attack the final merits determination by demonstrating that the USCIS’s finding under the second step is inconsistent with its finding under the first step, and that the USCIS cannot impose novel evidentiary requirements under the second step. However, if cases like this are litigated in the 9th Circuit or the 5th Circuit, the district court will be bound by the second step analysis under Kazarian v. USCIS and Amin v. Mayorkas (see our blog), respectively. As mentioned above, Kazarian which was decided in the 9th Circuit, has been interpreted to require a second step analysis in EB-1 petitions. The 5th Circuit grounded the final merits determination even deeper into the EB-1 framework in Amin. While the USCIS Policy Manual has adopted Kazarian’s final merits determination and requires officers adjudicating EB-1 petitions to conduct this second step analysis, district courts outside the jurisdiction of the 9th or 5th Circuits that review USCIS decisions are not bound by Kazarian or Amin or the USCIS Policy Manual. Such courts are only bound by precedent issued in its jurisdiction, statutes, or regulations, and therefore, need only consider the governing statutes, which in case of EB-1As (8 C.F.R. §204.5(h)) and EB-1Bs (8 C.F.R. §204.5(i)) are silent as to a second-step, final merits determination. Of course, a district court can conduct its review through the lens of the USCIS Policy Manual if it is persuaded by it, as was the case in Amin. A court can also be swayed by the second step analysis if it was persuaded by the holding in Kazarian as was the case in Rijal v. USCIS, Noroozi and Assadi v. Napolitano, Eguchi v. Kelly, Visinscaia v. Beers, and a number of other unpublished decisions which we discussed here. As was evidenced in all of these decisions, federal courts seem to be following the second step analysis even outside the 5th and 9th Circuits.

Most recently, in Amin,  the self-petitioner challenged the Policy Manual on the ground that it was not in accordance with the law because it conflicts with the regulation. Amin argued that once an EB-1A “applicant meets three of the ten regulatory criteria, the regulation shifts the burden to the government to explain why the applicant has not demonstrated extraordinary ability.” Indeed, this burden shifting approach was the standard pre-Kazarian pursuant to Buletini v. INS. The 5th Circuit disagreed with Amin and found that the USCIS’s application of the second step was consistent with the statute and regulation, clinging onto the regulation’s label “Initial evidence”, and the regulation’s requirement that applicants must submit evidence of “at least three criteria”, to conclude that this “word choice contemplates another step beyond submitting the enumerated evidence: if satisfying three criteria were enough, why would the agency invite proof of more?”

In comparison, it does not seem that the petitioner in Scripps challenged the USICS Policy Manual like Amin had, and thus, the Court did not have to render a decision as to the second step’s consistency with the statute and regulation. Still, the Court noted at the outset, by citing to Kazarian, that a “two-step review of the evidence submitted with an I-140 petition is required in determining whether a foreign national may be classified as an outstanding professor or researcher.” The Court also provided examples from the Policy Manual with respect to what officers may consider in the final merits determination. Indeed, the examples that it chose to extract from the Policy Manual were directly applicable to the evidence that was provided by Scripps, and it appears that these excerpts from the Policy Manual convinced the Court that the USCIS made internally inconsistent findings because the kind of evidence that these excerpted examples contemplated had been provided by Scripps. We noted one such inconsistency, with respect to the low number of citations, above.

The Scripps Court’s close adherence to the USCIS Policy Manual also contributed to its rejection of the inherent subjectivity of the final merits determination. One such example of the second step’s vicious subjectivity was evident in Noroozi and Assadi v. Napolitano where the self-petitioner did not meet at least three regulatory criteria, which could have ended the analysis, but the Southern District of New York also discussed how the self-petitioner would not have merited a favorable judgment under the second step because he ranked 248th in the world in table tennis and finished in 65th place in table tennis in the 2008 Olympics. According to the Southern District, these rankings would have obliged the USCIS to hypothetically grant EB-1 visas to the 283 higher ranked table tennis players and to the 283 higher ranked players in other sports, assuming they were noncitizens, as well as to the 64 table tennis players who outperformed the self-petitioner in the 2008 Olympics. The Southern District’s findings clearly invoked subjectivity as the EB-1 was never intended only for the number one player in a sporting field. This decision was issued prior to the publication of the USCIS Policy Manual.  At the time Noroozi and Assadi v. Napolitano was decided in 2012, a USCIS Policy Memo titled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22, AFM Update AD11-14” was in effect as of December 22, 2010 and stated:

If the USCIS officer determines that the petitioner has failed to demonstrate these requirements, the USCIS officer should not merely make general assertions regarding this failure.  Rather, the USCIS officer must articulate the specific reasons as to why the USCIS officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the alien is an alien of extraordinary ability under section 203(b)(1)(A) of the INA.

The current USCIS Policy Manual  similarly attempts to restrain the second step’s subjectivity by stating:

When requesting additional evidence or denying a petition, if the officer determines that the petitioner has failed to demonstrate eligibility, the officer should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific reasons as to why the officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the beneficiary is an outstanding professor or researcher.

This excerpt was also cited by the Scripps Court at the outset of its decision. Later, in its discussion of the USCIS’s final merits analysis with respect to the evidence Scripps had submitted, the Court highlighted that “[t]hroughout the final merits analysis, the USCIS repeatedly stated the evidence presented by Scripps was insufficient to establish Dr. Lum is recognized internationally as outstanding, however, it never stated what was required to establish international recognition as an outstanding professor or researcher.” It is clear to us that in doing so, the USCIS clearly failed to “articulate specific reasons” as instructed by the Policy Manual and instead made “general assertions” which the Policy Manual admonished. Despite the similarities in the December 22, 2010 USCIS Policy Memo and the USCIS Policy Manual, the Scripps Court still rejected the second step’s subjectivity, unlike the Noroozi and Assadi court. The discrepancy can perhaps be explained by the Scripps Court’s close reading of the USCIS Policy Manual which ultimately contributed  to its rejection of the imposition of evidentiary requirements that were outside the parameters of the Policy Manual. Neither the USCIS Policy Manual nor the 2010 USCIS Policy Memo state that one has to be an individual of certain standing in order to qualify for the EB-1. For the Noroozi and Assadi court to rule against the self-petitioner in a hypothetical final merits determination because he was not a top player, despite making it to the Olympics, was clearly a result of the court’s unbridled subjectivity. The Noroozi and Assadi court likely also would have agreed with the USCIS’s denial of Dr. Lum’s EB-1B classification because Scripps failed to show that her work was ‘being taught at more institutions than any other scholar’s works’ or that she did not receive funding in excess of other researchers. However, as the Scripps court made clear, the regulations and USCIS Policy Manual do not require the petitioner to show that the beneficiary’s contributions must exceed that of other researchers or professors in the field, and by doing so, curtailed the rampant subjectivity that has plagued EB-1 cases post-Kazarian.

Scripps v. Jaddou adds a positive rung to the growing ladder of final-merits-EB-1-cases which currently stands in opposition to prospective beneficiaries who, despite satisfying the regulatory criteria, end up falling short of their desired classification due to the curse of Kazarian. Although Scripps did not eviscerate the final merits determination analysis, it still paves the way for petitioners to argue that USCIS cannot and should not, under the cover of the second step final merits determination, be allowed to introduce new requirements outside the parameters of the regulatory criteria or reverse its prior acceptance of evidence under the regulatory criteria.

 

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Amin v. Mayorkas: Fifth Circuit Denies EB-1 Extraordinary Ability Petition Even Though Petitioner Met Three Out of Ten Regulatory Criteria

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By Cyrus D. Mehta and Jessica Paszko*

Establishing extraordinary ability under the employment-based first preference (EB-1) visa category is neither an easy nor straightforward feat. In 2010, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), which we wrote a blog about, muddied the waters when it tacked onto the EB-1 determination, a vague, second step analysis known as the “final merits determination” as part of the USCIS Policy Manual.  While the Fifth Circuit’s recent Amin v. DHS, No. 21-20212 (5th Cir. 2022), decision has provided further guidance, it has also grounded the final merits determination even deeper into the EB-1 framework.

As background, an individual can obtain permanent residence in the U.S. under EB-1 by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Olympic Gold Medal). If the applicant is not the recipient of such an award, then documentation of any three of the following is sufficient:

  • Receipt of lesser nationally or internationally recognized prizes or awards.
  • Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  • Published material about the person in professional or major trade publications or other major media.
  • Participation as a judge of the work of others.
  • Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

See 8 C.F.R. § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

Initially, applicants must submit the required “initial evidence” demonstrating that they meet at least three out of the ten criteria. However, successfully demonstrating that three criteria have been met is not commensurate with an EB-1 approval. It is only the first hurdle in establishing extraordinary ability. The USCIS subsequently conducts the final merits determination “to determine whether, as a whole, the evidence is sufficient to demonstrate that the applicant meets the required high level of expertise.” The Fifth Circuit provides a helpful analogy, even if depressing, to illustrate this two-step process­­­­­­––the first step is akin to the hopeful college applicant submitting all requisite application materials to a dream university, and the second step is where the applicant receives a rejection letter despite complying with all of the university’s admission criteria.

Before the Fifth Circuit, was the case of Bhaveshkumar Amin, a project manager in the field of chemical engineering who has worked for oil companies, and contributed to novel inventions, including a portable sulfur-forming unit, modularized well pads, and a high-efficiency drill rig. It was undisputed that Amin satisfied three criteria: judging the work of others, holding a leading role in industry organizations, and earning a high salary relative to peers. But that was not so initially. The USCIS, when first denying the petition, only agreed that he met the fourth criterion relating to judging the work of others. Amin bypassed the Appeals Administrative Office (AAO) and directly sought review of the denial in federal district court under the Administrative Procedures Act that allows challenges of final agency decisions that are arbitrary and capricious. After filing the lawsuit, USCIS agreed to reconsider the denial and determined that Amin had met three out of the ten criteria but still issued a denial because Amin did not meet the final merits determination. Amin continued with his lawsuit but the district court found that the USCIS’s reasoning behind the denial was insufficient to render it arbitrary and capricious.

Amin appealed to the Fifth Circuit. As a preliminary matter, the Fifth Circuit agreed that Amin could bypass the AAO and directly seek review in federal court under Darby v. Cisneros, 509 U.S. 137, 146-47 (1993). In Darby v. Cisneros, the Supreme Court held that when the statute or regulation does not require administrative appeal then the agency’s decision constitutes a final agency action. 8 C.F.R. § 204.5(n)(2) does not require administrative appeal, and thus Amin’s failure to appeal to the AAO did not deprive the court of jurisdiction under the APA. As an aside, it is good news that the Fifth Circuit did not invoke the jurisdiction stripping provision for discretionary determinations, INA 242(a)(2)(B), to deprive Amin of jurisdiction because of the discretionary nature of the final merits determination as the Ninth Circuit did in Poursina v. USCIS with a challenge to a denial of a national interest waiver denial under INA § 203(b)(2)(1)(A). Unlike INA § 203(b)(2)(1)(A) where discretion is clearly embedded, INA § 203(b)(1)(A) does not so explicitly state that the granting of EB-1 is discretionary.

The Fifth Circuit also disposed of Amin’s challenge to the USCIS Policy Manual that it was not consistent with the regulation and that it was issued without notice and comment. The Fifth Circuit held that the Policy Manual’s guidance regarding conducting a final merits determination was consistent with the regulation as the regulation did not presumptively state that meeting the three criteria guaranteed an extraordinary ability finding. 8 C.F.R. § 204.5(h)(3) referred to “initial evidence” and also stated that applicants must submit evidence of “at least three” criteria. Furthermore, the USCIS Policy Manual was an interpretive rather than a legislative rule, according to the Fifth Circuit, and so it could be issued without notice and comment. It is unfortunate that the Fifth Circuit gave short shrift to Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994). In Buletini, the court held that once an applicant met three out of the ten criteria, the regulation shifts the burden to the government to explain why the applicant has not demonstrated extraordinary ability. The USCIS Policy Manual, seizing on the Ninth Circuit’s “final merits determination” in Kazarian, shifted this burden onto the applicant in elaborating a highly subjective second step analysis. Kazarian’s curse has gone beyond the Ninth Circuit and has now afflicted the Fifth Circuit.  

The Fifth Circuit then reviewed Amin’s objection to the USCIS’s determination that he did not prove a fourth criterion: original scientific or business-related contributions of major significance in the field. It is interesting that Amin pushed for a finding recognizing that he had met this fourth criterion since 8 C.F.R. § 204.5(h)(3)(i)-(x) only requires a satisfaction of three criteria. Amin’s petition has been denied because he did not meet the final merits determination, and it appears that getting recognition that he met the fourth criterion would potentially be used to argue that he met the final merits determination if he met one more criterion. Indeed, the Fifth Circuit’s decision, namely footnote 7 states: “we review the agency’s step one analysis because if Amin satisfies a fourth regulatory criteria, he has a stronger overall case for extraordinary ability at the second step.” Amin pointed to his contributions in designing the world’s first portable sulfur-forming units, the first modularized well pads in the Alberta Oil Sands, and a high-efficiency “walking” drill rig capable of being moved from one well pad to another without being disassembled.

The USCIS determined, and the Fifth Circuit agreed, that Amin did not meet his burden of proving that his designs were of major significance to his field. According to the Fifth Circuit, a letter of support provided by Amin’s employer, calling his design a response to an industry need, did not demonstrate how Amin’s first design had any impact on the field, beyond merely benefiting his employer. The China National Offshore Oil Corporation also provided a letter of support describing how it utilized Amin’s second design and how it adopted similar strategies to build modules in China but had proved unsuccessful at achieving the same efficiency. The Fifth Circuit called this Amin’s “best evidence” because it addressed the impact of his work beyond his own employer, but it still proved insufficient because it failed to show “widespread replication of the design.” While the USCIS’s denial did not specifically address Amin’s contributions to the third design, the drill rig, it did acknowledge the letter of support provided on Amin’s behalf, and according to the Fifth Circuit, any error on this point was harmless because Amin’s evidence did not show that anyone beyond his company used, or even attempted to use, the rig design. Ultimately, although Amin provided great value to his employers, the record did not demonstrate that either the quality or quantity of his work is indicative of sustained national or international acclaim or that his achievements have been recognized in the field of expertise.

It is unfortunate that the Fifth Circuit likened the EB-1 to a “genius” or “Einstein” visa. Although the INA requires the petitioner to demonstrate sustained national or international acclaim, it does not mean that one needs to be an “Einstein” to win an EB-1 approval, which incidentally was granted to Melania Trump when she was a well-known model, although not in the same league as a super model. Indeed, even Einstein may not have been able to meet three out of the ten criteria when he published his papers on Special Relativity and General Relativity in 1905 and 1915. Still, both Einstein in 1915 and Trump were deserving of EB-1 classification.  It is thus disheartening that the Fifth Circuit wrote: “If the three criteria Amin proved—leadership in an industry organization, a high salary, and peer review experience—are enough to automatically show that acclaim, then the ‘extraordinary ability’ visa will look less like an Einstein visa and more like a Lake Wobegon one.” The Fifth Circuit assuming that the EB-1 is an Einstein visa is as fictional as Lake Wobegon.  In fact, DHS also updated and broadened its guidance related to O-1A nonimmigrant status for noncitizens of extraordinary ability who have recently graduated in STEM fields. The legal standard under the O-1A visa for establishing extraordinary ability is identical to the EB-1. For the first time, this update provides examples of evidence that might satisfy the criteria by those who have recently graduated or formed startups.

Despite the grim fate this decision casts on EB-1 petitions, there may be a possible glimmer of hope in the Fifth Circuit’s decision because it suggests in footnote 7 that successfully satisfying more than three criteria can bolster one’s case for extraordinary ability at the final merits determination stage. Many petitioners who file under EB-1 may satisfy more than three out of the ten criteria, and they must make every effort to have USCIS recognize more than three so that they may get a better shot at passing the final merits determination.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Jessica Paszko is a Law Clerk at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021, passed the New York Bar Examination and is awaiting admission to the New York Bar.

 

 

 

Cyrus Mehta

Expansion of STEM Practical Training and Broadening of O-1A Standards Allows Foreign Talented Students to Contribute to the US Even If Rejected in the H-1B Lottery

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By Cyrus D. Mehta and Kaitlyn Box*

On January 21, 2021, the Biden administration announced a series of actions aimed at attracting and retaining STEM students and workers to the United States. Among the most significant provisions, the U.S. Department of Homeland Security (DHS) has added 22 new fields to the STEM optional practical training (OPT) program to “enhance the contributions of nonimmigrant students studying” in STEM fields and to “support the growth of the U.S. economy and innovation.” The additions include a number of new and emerging fields, including bioenergy, cloud computing, climate science, business analytics, and financial analytics, to name only a few. Nursing, among other significant science-related fields, was not included in the list. Additionally, DHS has updated its guidance to clarify how individuals with advanced degrees in STEM fields, as well as STEM entrepreneurs, can self-sponsor for green cards through the national interest waiver (NIW).

Furthermore, DHS also updated its guidance related to O-1A nonimmigrant status for noncitizens of extraordinary ability in the fields of science, arts, education, business, or athletics. For the first time, the update provides examples of evidence that might satisfy the criteria, focusing on the complex nature of the supporting evidence in STEM-related petitions. For instance, under the published material criterion,  USCIS will accept a transcript of professional or major audio or video coverage of the beneficiary and the beneficiary’s work.  Regarding the critical  role criterion, the contribution by a founder of a startup might also qualify. Certain doctoral dissertation awards and Ph.D. scholarships  will also be accepted under the receipt of national or international award criterion. The update “also emphasizes that, if a petitioner demonstrates that a particular criterion does not readily apply to their occupation, they may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition”, and provides examples of comparable evidence that could be submitted by individuals in STEM fields.

The Department of State (DOS) guidance will also provide for an extension of J-1 status for undergraduate and graduate students in STEM fields to facilitate additional academic training for periods of up to 36 months. The extension applies to the 2021-22 and 2022-23 academic years.

Taken together, these updates will alleviate some of the uncertainty employers and STEM workers face in contending with the H-1B cap. Research has shown that the OPT program benefits the U.S. economy and is important in the creation of job opportunities, so the Biden administration should take all possible measures to encourage foreign students to utilize the program. Expanding STEM OPT fields, as well as allowing students to work in the U.S. for three years pursuant to STEM OPT, are good first steps.

In the time afforded them by the STEM OPT program, students can potentially be entered in the H-1B lottery three to four times. Each year as more petitioners register under the lottery, the chances of being selected become correspondingly less.  Even if individuals are unlucky enough to never be selected, they could potentially utilize the new O-1A guidance to obtain O classification. As discussed above, USCIS has broadened the evidentiary standards for O visas, including allowing online publications or videos to qualify as “published material”, which provides enhanced flexibility that may allow more STEM workers to qualify.

Potential for New Green Card Opportunities

For individuals from many countries, the PERM labor certification process can be completed for some during their time in STEM OPT, allowing them to obtain an employment-based green card.  Unfortunately, those born in India or China will not be able to benefit from this strategy due to enormous green card backlogs in the employment-based second and employment-based third preferences. However, certain individuals who were born in India or China with STEM degrees could try to obtain permanent residence through the employment-based first preference if they demonstrate extraordinary ability under EB-1A classification. Although the DHS has updated its guidance to make it easier for STEM graduates to obtain permanent residence through the national interest waiver, this category is of limited use to talented students who were born in India due to the decade plus long crushing backlogs in the employment-based second preference.  The employment-based first preference is current for India unlike the employment-based second and third preferences for India. Since the evidentiary standards for O-1 visas have been broadened in the USCIS Policy Manual, the same should hold true for the EB-1A category as the legal standards for O-1A and EB-1 are the same. In addition, while we applaud the Biden administration for broadening the O-1A evidentiary standards, we urge the administration to do away with the final merits analysis  under EB-1A in addition to broadening the EB-1A evidentiary standards. The final merits analysis rightfully does not exist for evaluating an O-1A petition, so it should not exist  under the EB-1A either, or for that matter any employment based green card category. Under the final merits determination (see our Curse of Kazarian  blog), the USCIS arbitrarily  denies meritorious EB-1A petitions on a purely subjective and arbitrary basis even when the petitioner has readily met 3 or more out of the 10 criteria.

Consistent with this Administration’s goal of removing barriers to legal immigration under President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, the policy makers at the White House and DHS who fashioned these initiatives should be commended for removing obstacles for talented noncitizens to remain and contribute to the US in the face of inaction by the US Congress. This is a good first step but a lot more can be done.

(This  blog is for informational purposes only and should not be viewed as a substitute for legal advice)

∗ Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference

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When Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian has been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary.

As background, an individual can obtain permanent residence in the US under the employment-based first preference (EB-1) by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

  • Receipt of lesser nationally or internationally recognized prizes or awards.
  • Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  • Published material about the person in professional or major trade publications or other major media.
  • Participation as a judge of the work of others.
  • Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

See 8 CFR § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

In Kazarian, the main bone of contention was what constitutes “authorship of scholarly articles in the field, in professional or major trade publications or other media.” In the original decision, Kazarian v. USCIS, 580 F.3d 1030 (Kazarian 1), the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” (citation omitted).

It was precisely this reasoning that  the new Kazarian decision reversed, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

Unfortunately after the initial victory, Kazarian, as interpreted by the USCIS, has resulted in a two part test. In the first part of the test, the USCIS has to determine whether the individual has met three of the 10 criteria to establish extraordinary ability. However, that is not sufficient and does not result in an approval. Even after meeting the first part of the test, the individual has to establish through a vague and undefined “final merits determination” that he or she is extraordinary.

Whether we like it or not, the two part test, based on the USCIS’s interpretation of Kazarian is here to stay with us – at least for now – and the focus of this article is to suggest ways to confront it and still win petitions for persons of extraordinary ability or outstanding professors and researchers.

In its December 22, 2010 Policy Memorandum, (“Policy Memorandum”), USCIS implemented a “two-part adjudicative approach” for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions. The Service cites Kazarian as the basis for modifying the Adjudicator’s Field Manual to include a second step in the adjudication process, the “final merits determination.” Although Kazarian did not actually create a “final merits determination,” and objected essentially to the AAO’s imposition of extra requirements under the evidentiary criteria in 8 CFR §§ 204.5(h)(3)(iv) and (vi), the Service seized on the following dicta in Kazarian as a basis for justifying a “final merits determination” analysis:

(1) While other authors’ citations (or lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence (emphasis added); and

(2) …[W]hile the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement (emphasis added).

Kazarian v. USCIS, 596 F.3d at 1121.

Under this two part test, the USCIS must essentially accept the evidence of extraordinary ability under the 10 criteria set forth in 8 CFR §204.5(h) (3)(i)-(x). The USCIS cannot object to the submission of the alien’s “scholarly articles in the field, in professional or major trade publications or other major media” under §204.5(h)(vi) unless there is consideration of the research community’s reaction to those articles, as it did erroneously in Kazarian. Still, the USICS may take this extra evidentiary factor into consideration, namely, the lack of reaction in the research community, during the “final merits determination” analysis. It is readily apparent that the analysis under the second step defeats the very essence of the holding in Kazarian that the USCIS cannot impose extra requirements under the evidentiary criteria. What it cannot do under the first step, the USCIS can still do under the “final merits determination.”

Post Kazarian decisions have generally affirmed the two-part test and final merits determination analysis notwithstanding the holding in a prior decision, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), which held, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Id. at 1234.  Under the burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts  onto  the  Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was  fraudulent or too dated and stale. Moreover, even while courts have adopted the final merits analysis, they seem to also be upholding the USCIS’s conflation of the step one analysis with the step two analysis.

Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff’d Rijal v. USCIS, 683 F.3d 1030 (9th Cir. 2012) is a decision that explicitly follows the Policy Memorandum, ignored the burden shifting approach as set forth in Buletini and conflated the two steps.  Although the petitioner in Rijal, a Nepali documentary film maker, submitted a UNICEF prize, the USCIS concluded that it did not meet the evidentiary criterion of “lesser nationally or internationally recognized prizes or awards of excellence”   as it was awarded more than 4 years ago and did not provide evidence of the alien’s sustained acclaim. While the court criticized the USICS for failing to consider this evidence under 8 CFR §204.5(h)(3)(i) and for similar errors under other evidentiary criteria, it nevertheless held that the petitioner did not suffer prejudice from these errors as “it made those errors with an eye toward the ultimate merits determination.” Rijal at 1347.  Based on a holistic determination of the petitioner’s evidence, the court held that the USCIS appropriately found that the petitioner did not demonstrate sustained national or international acclaim. It is clear that the court in Rijal affirmed the two step test set forth in the Policy Memorandum even though the suggestion of a “final merits determination” was mere dicta in Kazarian. However, instead of remanding the case because of the USCIS’s faulty step one analysis in rejecting the evidence, the Rijal court held these errors to be harmless under the step two final merits determination.

Noroozi and Assadi v. Napolitano is another decision, albeit unpublished, from the Southern District of New York that has agreed with the Kazarian two-step analysis, but also seemed to agree with the USCIS’s conflation of the two. Petitioner Noroozi represented Iran in table tennis at the 2008 Olympics in Beijing. Although neither Noroozi nor the Iranian table tennis team won any medal at the Olympics, the USICS initially approved the EB-1 petition, but then subsequently revoked it. A second EB-1 petition was filed, which was denied on the ground that Noroorzi only met two of the criteria, but not three. The court agreed with the USCIS that there was no evidence to substantiate that he played a “leading or critical role” for his team and nor did the “published material” about him pass muster since it focused more on the team and only briefly mentioned Noroozi. Although the failure to meet the evidentiary criteria could have ended the analysis, the court also discussed how Noroozi did not merit a favorable judgment under the second part “final merits determination.”  Since Noroozi ranked 284th in the world in table tennis, and finished 65th place in table tennis in the 2008 Olympics, the court noted that this would oblige the USCIS to hypothetically grant EB-1 petitions to the 283 higher ranked table tennis players, and also to the 283 higher ranked players in other sports, assuming they were non-US citizens, as well as to the 64 table tennis players who outperformed Noroozi in the 2008 Olympics. The court’s “final merits determination” in Noroozi is troubling as the EB-1 was never intended only for the number one player in a sporting field, and this decision should be contrasted with a pre-Kazarian decision involving an ice hockey player in the National Hockey League whose team won the Stanley Cup, but was not an all-stars or one of the highest paid players, but was still found to be qualified under EB-1. See Muni v. INS, 891 F. Supp. 440 (N.D. Ill 1995).  The “final merits determination” permits USCIS to set subjective baselines with respect to rankings of   players in sports even if they would potentially qualify under the ten evidentiary criteria as Muni did after he sought reversal of the denial of his EB-1 petition in federal court. Interestingly, in Noroozi, the attorney also became a plaintiff along with the petitioner on the ground that the USCIS denied the EB-1 petition based on the petitioner’s association with the attorney who had been unfairly singled out in a DOS cable. That strategy too failed since the court rejected that there was any bad faith on the part of the USCIS in denying Noroozi’s EB-1 petition.

Various unpublished AAO decisions [See e.g. AILA InfoNet Document Nos. 12062752 and 12062753]   suggest that the government’s final merits determination will consider evidence whether or not the petitioner has demonstrated : 1) a “level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the[ir] field of endeavor,” 8 CFR § 204.5(h)(2); and 2) “that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” § INA 203(b)(1)(A); 8 CFR § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20.   While it makes sense to preserve the argument in the record that the final merits determination is inapplicable and to propose the burden shifting approach under Buletini instead, it also behooves a petitioner to argue that his or her client merits a favorable adjudication under the “final merits determination” analysis given that it has been blessed in post-Kazarian decisions.  The amorphous nature of this standard allows the petitioner’s attorney flexibility to make a broad argument just as it gives the USCIS examiner the same flexibility to approve or not approve a case even after the petitioner has submitted evidence under the evidentiary criteria. For instance, if a petitioner has met 3 out of 10 evidentiary criteria, the agile practitioner may be able to argue that the petitioner has demonstrated to be among the small percentage who has risen to the top of the field, sustained national or international acclaim, and recognition of achievements, by highlighting only the strongest evidence rather than evidence submitted under all three criteria. If the scholarly articles are very impressive, but the awards are not and the petitioner may have judged the work of only one PhD student, then the focus could be on the impressive scholarly articles when qualifying him or her under the final merits determination. Moreover, under the final merits determination, a petitioner may be able to point to other evidence that may not categorically fall under the 10 evidentiary criteria, such as testimonials from eminent authorities in the field, as well as petitioner’s stellar academic background. Of course, if the evidence submitted under the evidentiary criteria is all qualitatively superior and extensive, then the practitioner must not rest on these laurels and take pains to highlight this for the final merits determination. Finally, the practitioner must always remind the USICS that the final merits determination is governed by the preponderance of evidence standard, as suggested in the Policy Memorandum too, which requires only 51% certainty.

In more recent cases, the USCIS has continued to conflate the step one with the step two analysis by rejecting that the petitioner met the evidentiary criteria and thus  bypassing the step two final merits determination altogether. A petitioner may seek review under the Administrative Procedure Act asking a federal court to find that the USCIS decision was arbitrary and capricious by conflating the two steps. Therefore, if we in any event have to deal with Kazarian, one strategy is to force USCIS to adopt the two steps if it only denied the case under step one.   Thus, in Eguchi v. Kelly, another unpublished decision, the USCIS denied an EB-1 petition of a Brazilian bullfighter. Eguchi submitted evidence that he won Brazil’s PBR Rookie of the Year in 2008. USCIS rejected the award on the ground that “such an award by its very nature is limited to neophytes, excluding more experienced bull riders. And therefore, such an honor does not measure your standing or selection from among those who are well established in the field or show your extraordinary ability under this criterion.”  The court disagreed since USCIS was conflating the step two final merits determination when the regulation only required Eguchi to submit evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor, which he did. Eguchi also submitted articles from various publications, including Yahoo! Sports, ESPN, and PBR’s website. The articles acknowledge Eguchi’s high rankings, victories, and earnings in PBR events. USCIS concluded that Eguchi submitted no evidence that PBR’s website is a major trade publication. The court held that it was self-evident that the website of the world’s premier professional bull riding association is a major publication for professional bull riding. The court also cited Muni v. INS., supra, at 444 which concluded that the petitioner did not need to show that National Hockey League’s (“NHL’s”) own magazine was major trade publication. Eguchi submitted evidence that he had earned over $700,000 in PBR events and ranked 44th on the association’s all-time money list—a ranking of the top earners in PBR history. He also submitted a history of PBR, which states that “[m]ore than 1,200 bull riders from the U.S., Australia, Brazil, Canada, and Mexico hold PBR memberships. But USCIS disputed this evidence on the ground that Eguchi’s earnings did not compare with the top 3 earners, whose earning have grossed between 3.9 and 5.15 million dollars, thus failing to establish that he is one of that small percentage who have risen to the very top of their endeavor. The court again smacked down USCIS that it impermissibly conflated step 1 with step 2.  At step one, according to the court, Eguchi was not obligated to prove that his salary illustrates that he is one of a small percentage who have risen to the very top of the field of endeavor and enjoy sustained national or international acclaim. Rather, Eguchi need only provide documentation showing that he has commanded a high salary or other significantly high remuneration for services, in relation to others in the field. According to the court, USCIS only focused on the top 2 or 3 earners in the sport but ignored the earnings of 1,200 PBR members.

Although the court in Eguchi v. Kelly found the USCIS’s denial to be arbitrary and capricious, and remanded, this author is unaware of the outcome of this case after it got remanded. It remains to be seen whether USCIS in similar cases will find a way to deny the petition again under the step two final merits determination analysis after a court has remanded based on the faulty analysis under step one. However, it still at least behooves the practitioner have a court hold the USCIS to the two step analysis rather than let USCIS conveniently deny the petition under step one. This is precisely what happened in Visinscaia v. Beers, 4 F. Supp. 3d 126 (D.D.C. December 16, 2013) involving an EB-1 petition for a ballroom dancer from Moldova. The court agreed with the USCIS that the petitioner failed to provide evidence that she influenced the field with her dance techniques, although it seemed that the USCIS conflated step two with step one. The court also agreed with USCIS that the petitioner had not played a leading role in a dance club in Moldova, which petitioner claimed had a distinguished reputation in Moldova, but USCIS countered that the club’s reputation did not extend beyond the borders of Moldova. Here too, the USCIS conflated step two with step one, which the Court endorsed. Finally, the USCIS interpreted the artistic exhibitions criterion as only including “visual arts”, where “tangible pieces of art … were on display” and not dance performances. This was a strained interpretation of the regulation, but the court still gave deference to the agency’s interpretation. Finally, the court also agreed with the rejection of the USCIS’s strained interpretation that “lesser national and international awards” must involve winning more than one such award, and the petitioner in that case only won one world championship in the World Dance Sport Federation Junior II Ten category.

Petitioners must at least try to get USICS to accept that the petitioner meets 3 out of the 10 criteria, and then fight USCIS under step 2 final merits determination. If the USCIS can knock out the petitioner under step 1, the game is over. The author highly recommends the reader to Recent Trends in EB 1 Extraordinary Ability and Outstanding Professor/Researcher Green Card Petitions by Dan Berger, Emma Binder, Philip Katz, David Wilks, and Stephen Yale‑Loehr. This insightful article surveys recent decisions of the AAO in the EB-1 extraordinary ability and Outstanding Professor/Researcher arena. It provides useful guidance regarding what kinds of evidence will be accepted under the 10 evidentiary criteria. Under the outstanding contributions of major significance evidentiary criterion, the authors point to AAO decisions that suggest that the contribution must have “measurably” expanded the scholarship such as in the case of an insect researcher whose discovery of ninety‑six new species of jumping spiders represented “10% of the overall documented information regarding certain spider families.” With respect to the authorship of scholarly articles prong, the authors have analyzed decisions where the “AAO is critical of inconsistent and declining publication records. According to the AAO, a publication rate that has declined in the past five years or so may indicate a lack of sustained acclaim, even if the individual published prolifically in prior years.”

Still, this begs the question that Kazarian sought to clarify, which is that the evidence submitted by the petitioner need not inherently be extraordinary under step one. That has to be determined in the step two final merits determination analysis. But, unfortunately, the Kazarian two step analysis is fundamentally flawed for it will continue to confuse and confound USCIS adjudicators and courts where the merits determination is often made under step one, and if it is not, the evidence is rejected under step two. If only one can convince a federal court to adopt the clearer standard in Buletini v. INS, the two step analysis under Kazarian will continue to roil EB-1 extraordinary ability adjudications.

A prior version of this blog, How Extraordinary Must One Be to Qualify as a Person of Extraordinary Ability, was published on The Insightful Immigration Blog on July 5, 2013, https://blog.cyrusmehta.com/2013/07/how-much-more-extraordinary-does-one.html

 

Cyrus Mehta

WILL KAZARIAN CHANGE THE 0-1 VISA?

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By Gary Endelman and Cyrus D. Mehta
The value of the O-1 visa is its flexibility, an adaptive quality that enables it to respond to the different needs of different petitioners. Any formulaic approach that restricts the full and open expression of such subtlety not only reduces the value of the O-1 but undermines its bedrock utility. That is why the stated willingness of the USCIS to apply a subjective Kazarian-style final merits analysis in the O-1 context, even after the applicant has satisfied the evidentiary criteria, should arouse our most serious concern. This is true for several reasons. Not only does such a constricted view of the O-1 prevent it from being all that it can be, but it blurs the distinction between the O-1 and the EB1-1 extraordinary ability immigrant petition, two different visa categories with different purposes. Just as the approval of an O-1 nonimmigrant petition does not ensure similar approval of an EB1-1 immigrant petition, the analytical tools used by USCIS examiners to evaluate the merits of these distinct categories must themselves remain separate.

With this as our starting point, what do the regulations tell us about the O-1? The O-1 visa is a useful visa for people, under INA §101(a)(15)(o), who can demonstrate extraordinary ability in the sciences, arts, education, business or athletics. Unlike the H-1B visa, it is not subject to an annual cap. It can also be availed of by artists and entertainers, people who are traditionally self-employed, as long as an agent serves as a sponsor. Although the “extraordinary ability” standard is a high one, artists can prove their eligibility under a lower “distinction” standard pursuant to INA §101(a)(46). Those qualifying for an O-1 visa in the motion pictures or television industry have to demonstrate extraordinary achievement, rather than extraordinary ability. There are thus three different standards under the O-1 visa.

Extraordinary ability in science, education, business or athletics means “a level of expertise indicating that the person is one of the small percentages who have arisen to the very top of the field of endeavor.” 8 CFR 214.2(o)(3)(ii).

The extraordinary criteria, as set forth in 8 CFR 214.2(o)(iii), are as follows:

(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or

(B) At least three of the following forms of documentation:

(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

(4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

(5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;

(6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media.

(7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

(8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

(C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

Extraordinary Achievement in the motion pictures and television means a “very high level of accomplishment in the motion picture or TV industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered.” 8 CFR 214.2(o)(3)(ii).

As already noted, an O-1 in the arts has to prove only distinction. While “extraordinary achievement” and “distinction” may appear to be two separate standards, the criteria for demonstrating extraordinary achievement in the motion picture or TV industry or distinction in the arts are almost identical, and  set forth at 8 CFR 214.2(o)(3)(iv) and (v), which are as follows:

(A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award; or

(B) At least three of the following forms of documentation:

(1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;

(2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;

(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;

(4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;

(5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or

(6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or

If the above criteria do not readily apply, only those establishing distinction in the arts can submit comparable evidence. People trying to qualify for an O-1 visa under the extraordinary achievement standard for motion pictures and the TV industry cannot submit comparable evidence.

All O-1 petitions must be accompanied by consultations from the appropriate unions, and if they do not exist, may contain opinions from expert sources.

Recent unpublished decisions from the Appeals Administrative Office are applying the two-part approach in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). When Kazarian was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability under a green card category pursuant to INA § 203(b)(1)(A)(i) would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian has been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary. We point readers to Cyrus Mehta’s blog, How Extraordinary Does One Have to Be to Qualify as a Person of Extraordinary Ability, for a detailed analysis of the Kazarian decision and how the USICS has interpreted it.

In its December 22, 2010 Policy Memorandum, (“Policy Memorandum“), United States Citizen and Immigration Services (USCIS) implemented a “two-part adjudicative approach” for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions. Here is the first, but unfortunately not the last, indication of a desire by the USCIS to utilize the final merits methodology of Kazarian in case types not mentioned in or justified by Kazarian itself. While the USCIS doubtless may view the extension of Kazarian to the O-1 as a logical expansion of its prior application to EB1-(2) outstanding researcher and EB-2 exceptional ability cases, skeptics may properly question whether this ever-widening deployment signifies not a greater precision but a lack of programmatic restraint.  The Service cites Kazarian as the basis for modifying the Adjudicator’s Field Manual to   include a second step in the adjudication process, the “final merits determination.” Although Kazarian did not actually create a “final merits determination,” and objected essentially to the AAO’s imposition of extra requirements under the evidentiary criteria in 8 CFR §§ 204.5(h)(3)(iv) and (v), the Service seized on the following excerpts in Kazarian as a basis for justifying a “final merits determination” analysis:

(1) While other authors’ citations (or lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence (emphasis added); and

(2) … [W]hile the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement (emphasis added).

Kazarian v. USCIS, 596 F.3d at 1121.

Under this two part test as it applies to an EB-1(1) extraordinary ability petition, the USCIS must essentially accept the evidence of extraordinary ability under the 10 criteria set forth in 8 CFR §204.5(h)(3)(i)-(x). The USCIS cannot object to the submission of the alien’s “scholarly articles in the field, in professional or major trade publications or other major media” under §204.5(h)(vi) unless there is consideration of the research community’s reaction to those articles, as it did erroneously in Kazarian. Still, the USICS may take this extra evidentiary factor into consideration, namely, the lack of reaction in the research community, during the “final merits determination” analysis. It is readily apparent that the analysis under the second step defeats the very essence of the holding in Kazarian that the USCIS cannot impose extra requirements under the evidentiary criteria. What it cannot do under the first step, the USCIS can still do under the “final merits determination.”

The authors question whether it is appropriate for the AAO to adopt the Kazarian two step analysis to O-1 petitions. Kazarian involved an extraordinary ability petition under INA § 203(b) (1)(A)(i), which is the employment-based first preference category (EB-1), through which an alien obtains lawful permanent residence. While the extraordinary ability criteria under the EB-1 may be identical to the O-1 extraordinary criteria for science, education, business and athletics, the criteria for extraordinary achievement in the motion picture and TV industry and for distinction in the arts are markedly different. Moreover, the O-1 visa petition requires a consultation from a union or expert opinion. A favorable opinion from the relevant union for an artist ought to be given deference by the USICS.   Injecting Kazarian into the O-1 visa adds needless subjectivity into the decision making process.

Kazarian’ s two-part test and final merits determination analysis runs counter to  prior decisions such as, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), which held, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Id. at 1234. Similarly, in Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995), a federal court reversed a denial for a professional hockey player where INS did not apply the proper criteria for extraordinary ability, and based its decision  on the ground that he was not an all-star or one of the highest paid players. Under the burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts  onto  the  Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was  fraudulent or too dated and stale. In fact, such a burden shifting approach is not unknown in other aspects of immigration law. If the Kazarian final merits determination analysis was deployed at that time, both Muni and Buletini, a leading physician in Albania, may have suffered a different fate.  As our colleague David Isaacson has pointed out, in the asylum context, an applicant who demonstrates that he or she has suffered past persecution on account of a protected ground is rebuttably presumed to have a reasonable fear of future persecution on that same ground.  8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1).  In such cases, by regulation, “the Service shall bear the burden of establishing by a preponderance of the evidence” that a change in circumstances, or the reasonable possibility of relocating within the country of persecution, should lead to a denial of asylum.  8 C.F.R. §§ 208.13(b)(1)(ii), 1208.13(b)(1).

Moreover the USCIS Policy Memorandum, which invented this two-part test from its interpretation of Kazarian, does not indicate that it would apply this test to O-1 visa adjudications, even though it has extended the two-art test to outstanding professors and researchers and aliens of exceptional ability.  On the other hand, the USCIS Adjudicator’s Field Manual (AFM) section on O-1s ( 33. 4(d))  states, as follows:

For an O-1 or O-2 case, the adjudicator must determine whether the alien meets the standards as outlined in the regulations cited above; however, he/she cannot make a favorable determination simply because the petitioner has submitted three of the forms of documentation mentioned. It must be a decision based on whether the total evidence submitted establishes that the alien of extraordinary ability has sustained national or international acclaim and recognition in his field of endeavor; or in the case of an alien of extraordinary ability in the arts and extraordinary achievement in the motion picture or television industry, whether he or she has a demonstrated record of high level accomplishment or a high level of achievement (or “distinction”).

However, it is not clear from this passage whether the USCIS intended to specifically apply the Kazarian “final merits determination” approach. The USCIS, and the predecessor Immigration and Naturalization Service, has always insisted that the alien overall meet the standard of extraordinary ability, but this was never meant to be as expansive as the Kazarian final merits determination. Rather, under the Buletini standard, the burden was on the government to the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.

The positive aspect of Kazarian, which established that the USCIS cannot create extra-regulatory criteria during the adjudication of a visa petition,  without formally amending the regulation through notice and comment to stakeholders, ought to be applicable to all visa petitions. On the other hand, introducing the vague and subjective “final merits determination” to O-1 visas will needlessly add subjectivity to the process, when Congress specifically required that O-1 visa petitions be accompanied by union consultations and expert opinions. Kazarian was also a decision that deals with the extraordinary criteria under the EB-1, while the O-1 visa has three different standards – extraordinary ability, extraordinary achievement and distinction. The guidance fails to alert USCIS adjudicators on how they could specifically apply the “final merits determination” standard to extraordinary achievement and distinction.  It is also important to restrict the application of the Kazarian final merits determination to other visa adjudications, or else there will be no limitation to the reach of the final merits determination. Will is also impact H-1B and L visa adjudications?  The long-range impact of what charitably be called “doctrine creep” is not hard to fathom. If the USCIS were to use the Kazarian final merits exercise much as it now deploys the Neufeld Memo, the meaning of “extraordinary ability” would be transformed beyond all ready recognition, much as the right of control has evolved beyond the imagination of the regulation that created it. When Congress enacted the standards for visa petitions, it intended adjudicators to faithfully apply those standards to either approve or deny the petitions. The infusion of the Kazarian “final merits determination” to visa adjudications would allow USCIS adjudicators to impermissibly stray from those standards.

Beyond that, to wrap the O-1 in an analytical straitjacket is yet another disturbing example of legislation through interpretation by the USCIS. While the INA itself does not change, what it means most certainly does change. All this comes about without the assent of Congress, whether expressed or implied, and in the absence of any notice and comment rulemaking mandated by the Administrative Procedures Act, thus eliminating the possibility of participation by concerned stakeholders. We all remember how the Administrative Appeals Unit decision in the New York State Department of Transportation case completely changed the meaning and practice of the National Interest Waiver. More recently, the USCIS jihad against the L-1B visa category and what amounts to a de facto rejection of the very concept of specialized knowledge has, in practice, repealed this visa provision to a very large extent. Is the O-1 now to suffer the same fate? What may be the most hard to detect damage resulting from invoking Kazarian in the O-1 arena is the fact that the evidence submitted by an O-1 petitioner is now to be judged by criteria that cannot be defined or even anticipated in advance Any attempt by the USCIS to use Kazarian to complicate the O-1 must be resisted. Complexity that exists for its own sake, not as an aid to an intellectually honest assessment but as a substitute for it does not advance the national interest. In a democratic society, the logic of any successful national policy must be transparently obvious to those who have to obey and support it. That is why the blurring of distinction between the O-1 and the Kazarian final merits determination is not only of little benefit to its intended beneficiaries, but actually frustrates any coherent attempt to make the system more amenable to consistent interpretation and effective enforcement.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)
Cyrus Mehta

HOW EXTRAORDINARY DOES ONE NEED TO BE TO QUALIFY AS A PERSON OF EXTRAORDINARY ABILITY?

/1 Comment/in /by

When Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian has been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary. Read on….

As background, an individual can obtain permanent residence in the US by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

 

  1. Receipt of lesser nationally or internationally recognized prizes or awards.
  2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  3. Published material about the person in professional or major trade publications or other major media.
  4. Participation as a judge of the work of others.
  5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  6. Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  7. Artistic exhibitions or showcases.
  8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  9. High salary or remuneration in relation to others in the field.
  10. Commercial success in the performing arts.

See 8 CFR § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

In Kazarian, the main bone of contention was what constitutes “authorship of scholarly articles in the field, in professional or major trade publications or other media.” In the original decision, Kazarian v. USCIS, 580 F.3d 1030 (Kazarian 1), the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” (citation omitted).

It was precisely this reasoning that  the new Kazarian decision reversed, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

Unfortunately after the initial victory, Kazarian, as interpreted by the USCIS,  has resulted in a two part test. In the first part of the test, the USCIS has to determine whether the individual has met three of the 10 criteria to establish extraordinary ability. However, that is not sufficient and does not result in an approval. Even after meeting the first part of the test, the individual has to establish through a vague and undefined “final merits determination” that he or she is extraordinary.

Whether we like it or not, the two part test, based on the USCIS’s interpretation of Kazarian is here to stay with us – at least for now – and the focus of this article is to suggest ways to confront it and still win petitions for persons of extraordinary ability or outstanding professors and researchers.

In its December 22, 2010 Policy Memorandum, (“Policy Memorandum“), USCIS implemented a “two-part adjudicative approach” for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions. The Service cites Kazarian as the basis for modifying the Adjudicator’s Field Manual to include a second step in the adjudication process, the “final merits determination.” Although Kazarian did not actually create a “final merits determination,” and objected essentially to the AAO’s imposition of extra requirements under the evidentiary criteria in 8 CFR §§ 204.5(h)(3)(iv) and (vi), the Service seized on the following excerpts in Kazarian as a basis for justifying a “final merits determination” analysis:

(1) While other authors’ citations (or lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence (emphasis added); and
(2) …[W]hile the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement (emphasis added).

Kazarian v. USCIS, 596 F.3d  at 1121.

Under this two part test, the USCIS must essentially accept the evidence of extraordinary ability under the 10 criteria set forth in 8 CFR §204.5(h)(3)(i)-(x). The USCIS cannot object to the submission of the alien’s “scholarly articles in the field, in professional or major trade publications or other major media” under §204.5(h)(vi) unless there is consideration of the research community’s reaction to those articles, as it did erroneously in Kazarian. Still, the USICS may take this  extra evidentiary factor into consideration, namely, the lack of reaction in the research community,  during the “final merits determination” analysis. It is readily apparent that the analysis under the second step defeats the very essence of the holding in Kazarian that the USCIS  cannot impose extra requirements under the evidentiary criteria. What it cannot do under the first step, the USCIS  can still do under the “final merits determination.”

Unfortunately, post Kazarian decisions seem to be affirming the two-part test and final merits determination analysis notwithstanding the holding in a prior decision, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), which held, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Id. at 1234.  Under the burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts  onto  the  Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was  fraudulent or too dated and stale. In fact, such a burden shifting approach is not unknown in other aspects of immigration law. As my colleague David Isaacson has pointed out, in the asylum context, an applicant who demonstrates that he or she has suffered past persecution on account of a protected ground is rebuttably presumed to have a reasonable fear of future persecution on that same ground.  8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1).  In such cases, by regulation, “the Service shall bear the burden of establishing by a preponderance of the evidence” that a change in circumstances, or the reasonable possibility of relocating within the country of persecution, should lead to a denial of asylum.  8 C.F.R. §§ 208.13(b)(1)(ii), 1208.13(b)(1).

Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff’d Rijal v. USCIS, 683 F.3d 1030 (9th Cir. 2012) is a decision that explicitly follows the Policy Memorandum, and ignores the burden shifting approach as set forth in Buletini.  Although the petitioner in Rijal, a Nepali documentary film maker, submitted a UNICEF prize, the USCIS concluded that it did not meet the evidentiary criterion of  “lesser nationally or internationally recognized prizes or awards of excellence”   as it was awarded more than 4 years ago and did not provide evidence of the alien’s sustained acclaim. While the court criticized the USICS for failing to consider this evidence under 8 CFR §204.5(h)(3)(i) and for similar errors under other evidentiary criteria, it nevertheless held that the petitioner did not suffer prejudice from these errors as “it made those errors with an eye toward the ultimate merits determination.” Rijal at 1347.  Based on a holistic determination of the petitioner’s evidence, the court held that the USCIS appropriately found that the petitioner did not demonstrate sustained national or international acclaim. It is clear that the Ninth Circuit in Rijal affirmed the two step test set forth in the  Policy Memorandum even though the suggestion of a “final merits determination” was mere dicta in Kazarian.

Noroozi and Assadi v. Napolitano,  ___ F. Supp. ___ (SDNY Nov. 14, 2012), available on AILA InfoNet at Doc. No. 12111644 (posted 11/16/12), is another recent decision from the Southern District of New York that has agreed with the Kazarian two-step analysis. Petitioner Noroozi represented Iran in table tennis at the 2008 Olympics in Beijing. Although neither Noroozi nor the Iranian table tennis team won any medal at the Olympics, the USICS initially approved the EB-1 petition, but then subsequently revoked it. A second EB-1 petition was filed, which was denied on the ground that Noorzi only met two of the criteria, but not three. The court agreed with the USCIS that there was no evidence to substantiate that he played a “leading or critical role” for his team and nor did the “published material” about him pass muster since it focused more on the team and only briefly mentioned Noroozi. Even though the failure to meet the evidentiary criteria could have ended the analysis, the court also discussed how Noroozi did not merit a favorable judgment under the second part “final merits determination.”  Since Noroozi ranked 284th in the world in table tennis, and finished 65th place in table tennis in the 2008 Olympics, the court noted that this would oblige the USCIS to hypothetically grant EB-1 petitions to the 283 higher ranked table tennis players, and also to the 283 higher ranked players in other sports, assuming they were non-US citizens, as well as to the 64 table tennis players who outperformed Noroozi in the 2008 Olympics. The court’s  “final merits determination” in Noroozi  is troubling as the EB-1 was never intended only for the number one player in a sporting field, and this decision should be contrasted with a pre-Kazarian decision involving an ice hockey player in the National Hockey League whose team won the Stanley Cup, but was not an all-stars or one of the highest paid players, but was still found to be qualified  under EB-1. See Muni v. INS, 891 F. Supp. 440 (N.D. Ill 1995).  The “final merits determination” permits USCIS to set subjective baselines with respect to rankings of   players in sports even if they would potentially qualify under the ten evidentiary criteria as Muni did after he sought reversal of the denial of his EB-1 petition in federal court. Interestingly, in Noroozi, the attorney also became a plaintiff along with the petitioner on the ground that the USCIS denied the EB-1 petition based on the petitioner’s association with the attorney who had been unfairly singled out in a DOS cable. That strategy too failed since the court rejected that there was any bad faith on the part of the USCIS in denying Noroozi’s EB-1 petition.

Various unpublished AAO decisions [See e.g. AILA InfoNet Document Nos. 12062752 and 12062753]   suggest that the government’s final merits determination will consider evidence whether or not the petitioner has demonstrated : 1) a “level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the[ir] field of endeavor,” 8 CFR § 204.5(h)(2); and 2) “that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” § INA 203(b)(1)(A); 8 CFR § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20.   While it makes sense to preserve the argument in the record that the final merits determination is inapplicable and to propose the burden shifting approach under Buletini instead, it also behooves a petitioner to argue that his or her client merits a favorable adjudication under the “final merits determination” analysis given that it has been blessed in post-Kazarian decisions.  The amorphous nature of this standard allows the petitioner’s attorney flexibility to make a broad argument just as it gives the USCIS examiner the same flexibility to approve or not approve a case even after the petitioner has submitted evidence under the evidentiary criteria. For instance, if a petitioner has met 3 out of 10 evidentiary criteria, the agile practitioner may be able to argue that the petitioner has demonstrated to be among the small percentage who has risen to the top of the field, sustained national or international acclaim, and recognition of achievements, by highlighting only the strongest evidence rather than evidence submitted under all three criteria. If the scholarly articles are very impressive, but the awards are not and the petitioner may have judged the work of only one PhD student, then the focus could be on the impressive scholarly articles when qualifying him or her under the final merits determination. Moreover, under the final merits determination, a petitioner may be able to point to other evidence that may not categorically fall under the 10 evidentiary criteria, such as testimonials from eminent authorities in the field, as well as petitioner’s stellar academic background. Of course, if the evidence submitted under the evidentiary criteria is all qualitatively superior and extensive, then the practitioner must not rest on these laurels and take pains to highlight this for the “final merits determination.”Finally, the practitioner must always remind the USICS that the “final merits determination” is governed by the preponderance of evidence standard, as suggested in the Policy Memorandum too, which requires only 51% certainty.

It need not be this way as Congress probably did not intend for the USCIS to create a subjective final merits determination, when it enacted the priority worker categories under the Employment-based first preference in the Immigration Act of 1990. The starting point for examining the legislative history of the Immigration Act of 1990 is the House Report. See H.R. Rep. No. 723, Pt. 1, 101st Cong., 2d Sess. 4 (Sept. 19, 1990).  With respect to aliens of extraordinary ability, the House Report states:

 

In order to qualify for admission in this category an alien must (1) demonstrate sustained national or international acclaim in the sciences, arts, education, business or athletics (as shown through extensive documentation); (2) be coming to the United States to continue work in that area of expertise; and (3) by virtue of such work benefit the United States. Documentation may include publications in respected journals, media accounts of the alien’s contributions to his profession, and statements of recognition of exceptional expertise by qualified organizations. Recognition can be through a one-time achievement such as receipt of the Nobel Prize. An alien can also qualify on the basis of a career of acclaimed work in the field. In the case of the arts, the distinguished nature of the alien’s career may be shown by critical reviews, prizes or awards received, box office standing or record sales. In short, admission under this category is to be reserved for that small percentage of individuals who have risen to the very top of their field of endeavor.
H.R. Rep. No. 723 at 69.

There is nothing in this passage that suggests that the USCIS needed to conduct a two-step analysis to determine extraordinary ability. On the contrary, the House Report broadly suggests a number of possibilities under which an alien can establish extraordinary ability, such as through publications in respected journals, media accounts or statements of recognition of exceptional expertise by qualified organizations. Moreover, the House Report also indicates that “[a}n alien can also qualify on the basis of a career of acclaimed work in the field.”

The implementing regulations appropriately relied on the House Report in defining “extraordinary ability” to mean “a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the field of endeavor.” See commentary on implementing regulations at 56 Fed. Reg. 60897 (Nov. 29, 1991). The proposed regulations would have used one of the “few (emphasis added) who has risen to the very top of the field,”  but after listening to the objection of commentators, the Service substituted the word “few” with “small percentage” in deference to the same, albeit broader, verbiage that was used in the House Report. By developing the ten evidentiary criteria at 8 C.F.R. §204.5(h)(3)(1)-(x), and recognizing that if an alien met three out of the 10 criteria, the Service appropriately followed Congressional intent by allowing this alien to demonstrate  extraordinary ability, which is “a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the field of endeavor.” There is nothing more that is required within the regulatory criteria to demonstrate whether an alien was within that “small percentage,” and this appears to be consistent with the House Report too. Given the broad examples in the House Report for demonstrating extraordinary ability, the Service also promulgated an additional regulation, 8 C.F.R. § 204.5(h)(4),  that permits submission of comparable evidence when the given criteria do not apply to the candidate’s occupation or achievements. The DHS Ombudsman’s recommendations to improve the quality of extraordinary ability adjudications also discusses that the administrative practice prior to Kazarian was to base an applicant’s extraordinary ability on complying with 3 out of the 10 evidentiary criteria.

The extraordinary ability provision, as crafted by Congress in 1990, should be viewed in the context of other introductory passages in the House Report preceding the section on extraordinary ability. Congress was clearly concerned about the US labor market facing two problems, which immigration policy could help correct. Id. at 52. “The first is the need of American business for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found and the need for other workers to meet specific labor shortages.” Id. The following passage from the House Report is worth extracting, and while written in 1990, is relevant even in 2013:

The competitive influences of the Asian Pacific Rim, Caribbean Basin, and the European Community are forcing re-evaluation of the U.S. role in the world. Immigration law is not now in synchronization with these global developments. Its current structure inhibits timely admittance of needed highly skilled immigrants. The highest preference in the employment category, relating to people of exceptional ability, currently involves an 18-month wait for a visa. The other employment category, for skilled and unskilled workers, is subject to a 2 ½ year wait. This lack of responsiveness may impede the ability of businesses to plan and operate efficiently and effectively in the global economy.
Id. at 53.

Indeed, it is very clear that IMMACT90, as reflected by the intent of Congress in the House Report, has failed to address the problem of timely admittance of highly skilled immigrants. The waits under the employment-based second preferences (EB-2) for India and China and in the employment-based third preferences (EB-3) for all countries, and worse for India, are far greater in 2013. In the case of the India EB-3, the wait could be several decades long. If immigration law was not in synchronization with global developments in 1990, it is much less so in 2013 especially since the world has become far more globalized and interdependent. Indeed, one way to correct the imbalance is for the USCIS to faithfully interpret the pivotal extraordinary ability provision in light of Congressional concern in 1990, which continues to be even more of concern today, and that is to expeditiously allow an alien of extraordinary ability who meets 3 out of the 10 evidentiary criteria to be able to obtain permanent residence  in the employment-based first preference (EB-1), which unlike the EB-2 for India and China, and the EB-3, remains current and has always remained current. A second-step subjective merits analysis, as proposed by the USCIS, would continue to thwart Congressional intent as it would lead to arbitrary denials of aliens who otherwise can demonstrate extraordinary ability, and who would clearly be able to benefit the U.S.

(This article is partly based on Demystifying the Final Merits Analysis of Extraordinary Ability by Cyrus Mehta, Roberto Caballero and Rita Sostrin, Immigration Practice Pointers, AILA 2013-14 Ed. The article contains general information and should not be relied upon as a substitute for legal advice.)