10 Tips for Building an EB-1 case in Light of Kazarian

As is well known by now, in 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed a decision from the Administrative Appeals Office (AAO) of USCIS that had dismissed the appeal of an extraordinary ability petition. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). In Kazarian, the U.S. Court of Appeals concluded that while the AAO raised legitimate reservations about the significance of the submitted evidence, the AAO should have analyzed the concerns in a subsequent “final merits determination.”

On December 22, 2010, in response to the Kazarian decision, USCIS published its Policy Memorandum regarding the “Evaluation of Evidence Submitted with Certain Form I-140 Petitions.” The stated purpose of the Policy Memorandum was to provide guidance regarding the analysis that USCIS officers who adjudicate these petitions should use when evaluating evidence submitted in support of Form I-140, Immigrant Petition for Alien Worker, filed for:

  • Aliens of Extraordinary Ability;
  • Outstanding Professors or Researchers; and
  •  Aliens of Exceptional Ability

The Policy Memorandum makes clear that from now on, the USCIS evaluation should involve a two-part analysis:

  1.  Part One of the analysis involves assessing whether the petitioner has submitted  evidence in two/three out of six of the categories listed in the federal regulations;
  2. Part Two of the analysis requires USCIS officers to evaluate the evidence all together when considering the petition in its entirety.

The USCIS  Adjudicator’s Field Manual Chapter 22.2, AFM Update AD11-14, gives very thorough guidance as to how to evaluate the evidence submitted to support the listed evidentiary criteria but scant guidance indeed as to what constitutes a “final merits determination”. The language of the Policy Memo indicates that the USCIS officer must  assess “whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

Unfortunately, in its current form, the Kazarian Policy Memo and the changes to the Adjudicator’s Field Manual undercut the authority of USCIS’s own regulatory criteria rendering those criteria as mere “tickets in the door” and subordinating them to an undefined merits determination. The subordination of objective regulatory criteria to a subjective under-defined merits determination thwarts efforts to achieve transparency, consistency, predictability and ultimately due process and fundamental fairness.

Despite the lack of guidance re. “the final merits determination” we have found the following 10 tips to be helpful in preparing a winning case:

  1. Don’t try to submit evidence in all of the listed categories. Focus on the two (for outstanding professor or researcher) or three (for extraordinary ability) categories  that are the strongest.
  2. For the categories you decide to target, for example where USCIS indicates it wants to see “major prizes,” be sure to document that the prizes/awards you have received are major. USCIS is looking for prizes that are comparable to: Japan’s Kyoto Prize; France’s Grande Médaille d’Or; China’s State Supreme Science and Technology Award; Norway’s Kavili Prize, etc… If the prizes you received do not attain that level, document, document, document exactly what your prize is about.
  3. Don’t use citations as proof of published material in professional publications written by others about your work. USCIS wants to see that the article must be “primarily” about your work, even though no such requirement is listed in the regulations.
  4. To prove your original contributions, don’t rely on endorsement letters extolling your brilliance. Nowadays, USCIS emphasizes “contribution” over “original”. Focus on how your work has an impact on the field in general.
  5. If you are going to use citations to show the impact on the field as a whole, be sure that you have a lot of citations. There is no rule of thumb, but in our office we look for additional ways to show impact when the citations come in at less than 150.
  6. If you are in an applied field or a humanities/social science field where citations are not an accurate measure of impact, be sure to document that citations are not the metric for evaluating contribution and substitute other ways to show impact on the field as a whole.
  7. Be sure to document the reception of your publications to show impact on the field, and not just the quality and impact factor of the publishing journal.
  8. If you are going to be showing that you have reviewed many manuscripts as proof of judging the work of others, be sure to include documentation of how and why you were chosen to review, the quality of the requesting journal, the number of times you have been asked to review, and most importantly, be sure to document that you did in fact do the review.
  9. Do set up your case in two parts: Part One should be reserved for a discussion of the submitted evidence under the regulatory criteria; Part Two should be reserved for a review of your evidence “in its entirety”. Part Two is where it might be helpful to throw in anything that would not be considered sufficient to prove a specific criterion, but “in total” show up your achievements to their best advantage. For example, even through travel awards are generally not considered major prizes, highlighting that you won several of those awards to attend major conferences, gives a fuller and more accurate picture of your accomplishments.
  10. Do pick your endorsers carefully. In our Post-Kazarian world, we urge our clients to focus on independent and objective endorsers who know of your work primarily through reputation. And do make sure that support letters address how each of your accomplishments meet each individual criterion, as well as how the evidence in its entirety demonstrates that you have achieved national or international acclaim and are one of the very few who have risen to the top of the field. Most importantly, make sure your letters are pegged to an 8th grade level. We can’t expect the adjudicating officer to be an expert in every field.

Finally, bear in mind that the officer is given no more than 20-30 minutes to review your case. Make things easy for the officer. Use large colored fonts. Include lots of pictures. Explain things. Don’t expect the officer to make the leap and do the work of connecting the dots. You are in control of the narrative. Engage your reader.