USCIS Raises the Bar for EB-1 Petitions

This past year has seen a dramatic change in the adjudication process for EB-1 Petitions (for Aliens of Extraordinary Ability, Outstanding Professors/Researchers or Aliens of Exceptional Ability).  And not for the better.  For not only has USCIS raised the bar on these applications, but more significantly it has thrown out well-established standards of adjudication in favor or arbitrary and impossible-to-define criteria.  None of this bodes well for the outstanding individuals and academics that this country ought to be encouraging to immigrate to the US.

In order to put this discussion in context a brief rundown on EB-1 Petitions will be helpful.  Although EB-1 covers more than just Outstanding Professors and Researchers, for the sake of brevity I have included  a brief outline of the regulatory framework that governs these EB-1 petitions.  8 CFR 204.5(i)(3)(i) provides that an Outstanding Professor/Researcher is one who:

  1. Is recognized internationally as outstanding in a specific academic area;
  2. Has at least 3 years experience teaching or research in the relevant field; and
  3. Is seeking entry to the US for a tenure track position, a comparable position at a University or Institute of Higher Education to conduct research or with a private employer if it employs at least 3 persons full-time in research activities and has achieved documented accomplishments in the field.

Satisfying steps 2 and 3 is relatively straightforward.  Step 1, however is where the fun and games begin and where USCIS has now made matters even more complicated.

Prior to the recent decision in Kazarian v USCIS, 596 F.3d 1115, (9 Cir. 2010), proof of international recognition as outstanding in the field required documentation of at least two of the following:

  1. Receipt of a major prize or award for outstanding achievement;
  2. Membership in a professional association that requires outstanding achievement;
  3. Published material in professional publications written by others about your work
  4. Evidence of participation (either individually or on a panel) as a judge of the work of others in the same or allied academic field;
  5. Evidence of your original work or scholarly research contributions to the field;
  6. Evidence of your authorship of scholarly books or articles in the field

Over time each of these criteria developed its own nuances, and putting together a successful petition has always required enormous attention to detail as well as experience as to what evidence “counts” and would be considered by USCIS to have  satisfied the standard.  Nevertheless, Petitions filed on  behalf of individuals who could adequately document at least two of these criteria were typically approved without too much trouble – and I am proud to state that this office had a 100% success rate in this area.

Recently, this clear standard was discarded in favor of ambiguity.  USCIS is now undertaking a two-step approach to these petitions, as per the court decision in Kazarian (and in my opinion, well beyond the bounds of that case).  The Investigating Officer must now first evaluate all the evidence on an individual basis in order to determine if it meets at least two of the above criteria, and then, “must consider all of the evidence in totality in making the final merits decision.”.  Absolutely no guidance is provided to either the IO or the practitioner as to what, if any metrics will be applied to this “final merits decision”, and what criteria should be considered other than the individual opinion of the evaluator.  All we know is that the IO must evaluate all the proffered evidence “to see if, cummulatively, it proves by a preponderance of the evidence that the applicant or beneficiary is at the very top of his or her field of endeavor.”

And this takes us back to square one. The very purpose of the six enumerated criteria was to provide a standardized matrix by which the outstanding ability of the applicant could be measured.  Now, that measurement has been relegated to a necessary but insufficient tool,  and can be undermined by completely unknown, subjective and hard-to-refute criteria.  USCIS can now hang its hat on that amorphous “final merits determination” to deny any petition that it deems not “extraordinary” or “outstanding”, despite evidence to the contrary.

So much for encouraging the immigration of individuals of extraordinary ability!

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