EB-1-1 and EB-1A Under scrutiny

In 2010, USCIS provided policy memorandum to guide Immigration Service Officers to adjudicate Form I-140, Immigrant Petition for Alien Worker for Aliens of Extraordinary Ability u/s 203(b)(1)(A), 203 (b)(1)(B) and Aliens of Exceptional Ability u/s 203 (b)(2) of INA.  This Memo firmly agrees with Kazarian v USCIS, 596 F.3d 1115 (9^th Circuit 2010) and has followed the decision to date while adjudicating the applications under these sections.

The Kazarian case provided two part adjudication process to evaluate evidence submitted in connection with petition for aliens of extraordinary ability: (1) Determine whether the petitioner or self-petitioner has submitted the required evidence to meet each type of evidence listed at 8 CFR 204.5(h)(3) and (2) Determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the high level of expertise for the extraordinary ability immigrant classification during a final merits determination and uses preponderance of evidence standard. USCIS uses this approach but has shifted the analysis to overall extraordinary ability to the end of the adjudicative process.

But the current trend of adjudicating the petitions is becoming problematic and members of American Immigration Lawyers Association (AILA) has reported issues with misapplication of the regulatory criteria and the Kazarian guidelines by USCIS. These petitions receive RFEs, NOID and denials. Some of the reported issues are: requesting objective evidence of the beneficiary’s original contribution to the field and refusing to accept testimonial letters as satisfactory evidence; discounting evidence of the judge of work of others where judging the work of others is an inherent duty of the occupation; Misapplication of Kazarian in reviewing the case and focusing on criteria rather then reviewing the case as a whole; requiring multiple evidentiary examples to qualify for each regulatory category; discounting of the lesser awards category when the awards are national awards in the beneficiary’s country; applying clear and convincing standard of review instead of the preponderance of the evidence standard; and other misapplication of the regulatory criteria.

With the above in background, we caution our readers when filing petitions under the EB-1A category to be aware of the USCIS recent trends and be prepared to fight it to Motions to reopen, reconsider, appeal and litigation, if needed.