The Kazarian decision and Extraordinary Ability petitions

In my 2010 article “Limits to Arbitrary Agency Action,” I analyzed the 9th Circuit’s decision in Kazarian v. USCIS regarding evidentiary standards in visa petitions based on a claim of the alien’s extraordinary ability (New Jersey Law Journal, Vol. 200, No. 6, May 10, 2010).  Following that decision, the agency issued a Policy Memorandum titled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions: Revisions to the Adjudicator’s Field Manual (AFM),”  Chapter 22.2, AFM Update AD11-14 (Dec. 22, 2010).

That Policy Memorandum has been criticized by some in the industry for failing to provide accurate guidance or consistency in the EB-1 Extraordinary Ability determinations, and for potentially enshrining into the adjudication process extra-regulatory evidentiary standards that the Kazarian court had sought to prevent.

Thus, the USCIS’s Office of the Citizenship and Immigration Services Ombudsman recently issued a report that tries to address some of these concerns.  What does this report say?

Basically, the Ombudsman issued three recommendations.  These are:

1.  Engage in formal rulemaking to clarify the regulatory standard, and, if desired, explicitly incorporate a final merits determination into the regulations;

2. Provide the public with guidance on the application of a final merits determination; and

3. Give adjudicating officers more training and direction on the “proper application of preponderance of the evidence standard.”

Officers should also be encouraged to continue making sure that RFEs are in fact responsive to the petition that has been submitted so that they are not asking for material or substantiation that has already been supplied.

Until such issues are resolved it is important to continue to provide USCIS with clear and persuasive evidence of as many regulatory criteria as are applicable to a particular case, and to demonstrate the significance of each accomplishment, not just that the accomplishment exists.  In order to put forth a persuasive Extraordinary Ability petition, especially in light of the uncertain legacy of Kazarian, applicants should attempt to engage law firm assistance that can provide experienced, creative and ethical counsel at all times.

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