Chapter 14 - § 14.4 • HOW DOES USCIS ADJUDICATE EXTRAORDINARY ABILITY PETITIONS?

• Jurisdiction: Colorado

§ 14.4 • HOW DOES USCIS ADJUDICATE EXTRAORDINARY ABILITY PETITIONS?

Over the years, there has been much debate and confusion regarding how to interpret the regulatory criteria for the extraordinary ability category and two conflicting standards have developed. The first standard is articulated in a July 30, 1992 memo by Lawrence Weinig, Acting Assistant Commissioner for Examinations of the former Immigration and Naturalization Service (legacy INS).²¹ The Weinig memo states that meeting three of the enumerated criteria is determinative of extraordinary ability.²² Several federal district courts have held that the standard set forth in the Weinig memo is the governing standard.²³

The second standard is articulated in a May 20, 1993 memo by Edward Skerrett, Chief of the Immigration Branch, legacy INS, which states, "There are circumstances in which a petitioner, having complied with the 'initial evidence' requirements, may be called upon for additional evidence to demonstrate that [he or she] meets the governing definitions of extraordinary ability."²⁴ This interpretation is reflected in the USCIS proposed rule amending 8 C.F.R. § 204.5(h)(3) to state that meeting three of the evidentiary criteria is not dispositive of whether the petitioner is an individual of extraordinary ability.²⁵ This amendment to the regulation remains a proposed rule and has not been enacted into law.

The AAO has not issued a precedent decision concerning this issue and has vacillated in its non-precedential decisions. For example, the AAO has held that if a petitioner presents enough evidence to "technically satisfy" three of the regulatory criteria and in doing so has established sustained acclaim in the context of those criteria, that he or she has established eligibility for the extraordinary ability category.²⁶ In contrast, the AAO has also held that the "mere contention that an . . . [individual] . . . meets a set number of criteria from the regulatory list does not mandate a finding of eligibility."²⁷

In the 2010 case of Kazarian v. USCIS, the Ninth Circuit attempted to reconcile the different standards by articulating a two-step process to analyze extraordinary ability petitions. The Ninth Circuit held that USCIS adjudicators must first determine whether the petitioner has submitted evidence satisfying three of the regulatory criteria. If the requisite evidence has been submitted, then the second step of the adjudication process is to evaluate the evidence as a whole to decide if the individual has risen to the very top of his or her field and whether the individual has sustained national or international recognition for accomplishments in the field.²⁸

In December 2010, USCIS adopted the Ninth Circuit's decision in Kazarian and issued new policy guidance on how to adjudicate extraordinary ability petitions.²⁹ The policy guidance instructs USCIS adjudicators to first evaluate the evidence to determine if it meets the criteria, and then consider all of the evidence in its entirety to make a final merits determination. While the policy memorandum provides some guidance to USCIS adjudicators, many immigration attorneys believe that the guidance does not articulate the proper framework to evaluate the regulatory criteria for the extraordinary ability category.³⁰...