The Curse of Kazarian v. Uscis in Extraordinary Ability Adjudications Under the Employment-based First Preference: Cyrus D. Mehta

• Publication year: 2019

The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference¹

Cyrus D. Mehta^*

Abstract: When Kazarian v. USCIS was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down. If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, USCIS has interpreted Kazarian to require a new and vague second-step analysis known as the "final merits determination," which can stump even the most extraordinary. Whether we like it or not, Kazarian is here to stay with us, and it is important to ensure that the USCIS adheres to the two-step analysis. The USCIS must accept evidence under the three criteria, and then under step 2 make a final merits determination. If the USCIS fails to accept evidence under the three criteria under step one, the game is over. If that were to happen, one remedy is to challenge the denial under the Administrative Procedures Act in federal court to ensure that the USCIS complies with the two-step analysis.

When Kazarian v. USCIS was first decided by the Ninth Circuit Court of Appeals in 2010,² it was received with much jubilation, as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down. If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, U.S. Citizenship and Immigration Services (USCIS) has interpreted Kazarian to require a new and vague

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second-step analysis known as the "final merits determination," which can stump even the most extraordinary.

As background, an individual can obtain permanent residence in the United States under the employment-based first preference (EB-1) by establishing extraordinary ability in the sciences, arts, education, business, or athletics. The extraordinary ability must have been demonstrated by sustained national or international acclaim and the individual's achievements must have been recognized in the field through extensive documentation.³ The individual must also demonstrate an intent to continue working in his or her area of extraordinary ability and prove that his or her entry will "substantially benefit prospectively the United States."⁴ Unlike most other petitions, the EB-1 may be a self-petition, and no job of Fer or tests of the labor market are required. Evidence to demonstrate "sustained national or international acclaim" could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar, or GRAMMY).⁵ If the petitioner is not the recipient of such an award, documentation of any three of the following is sufficient:⁶

- Receipt of lesser nationally or internationally recognized prizes or awards;

- Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts;

- Published material about the person in professional or major trade publications or other major media;

- Participation as a judge of the work of others;

- Evidence of original scientific, scholastic, artistic, athletic, or business-related contributions of major significance;

- Authorship of scholarly articles in the field, in professional or major trade publications or other media;

- Artistic exhibitions or showcases;

- Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation;

- High salary or remuneration in relation to others in the field; or

- Commercial success in the performing arts.

A petitioner may also submit comparable evidence if the above standards do not readily apply to the individual's field of extraordinary ability.⁷

In Kazarian, the main bone of contention was what constitutes "authorship of scholarly articles in the field, in professional or major trade publications or other media." In the original 2009 decision known as Kazarian I,⁸ the Ninth Circuit agreed with USCIS's Administrative Appeals Office (AAO) that "publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community's reaction to those articles."

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The court in Kazarian I acknowledged that this reasoning "may be circular, because publication, on its own, indicates approval within the community."⁹ However, the court went on to justify the AAO's circular reasoning, probably unmindful of the adverse effect that it would have for future EB-1 petitioners. It stated, "Because postdoctoral candidates are expected to publish, however, the agency's conclusion that the articles must be considered in light of the community's reaction is not contrary to the statutory mandate that the alien have achieved 'sustained national or international acclaim.'"¹⁰

The 2010 Kazarian v. USCIS decision (Kazarian II) reversed precisely this reasoning, on the ground that it was inconsistent with the governing regulation, 8 CFR §204.5(h)(3)(vi), which simply states that the petitioner must produce "[e]vidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media." The regulation does not require consideration of the research community's reaction to those articles, which was essentially an invention of USCIS.

Unfortunately, after the initial victory, Kazarian II, as interpreted by USCIS, has resulted in a new and burdensome two-part test. In the first part of the test, USCIS must determine whether the individual has met three of the ten criteria to establish extraordinary ability. However, that alone is not sufficient and does not result in an approval. Even after meeting the first part of the test, the individual has to establish through a vague and undefined "final merits determination" that he or she is extraordinary.

Although without statutory basis, the two-part test, based on USCIS's interpretation of Kazarian II, is here to stay—at least for now—and the focus of this article is to suggest ways to confront and overcome it, producing successful results for clients.

In a December 22, 2010, policy memorandum,¹¹ USCIS implemented a "two-part adjudicative approach" for extraordinary ability, outstanding researcher and professor, and exceptional-ability immigrant visa petitions. The Service cites Kazarian II as the basis for modifying its Adjudicator's Field Manual to include a second step in the adjudication process, the "final merits determination." Although Kazarian II did not actually create a "final merits determination," and objected essentially to the AAO's imposition of extra requirements under the evidentiary criteria in 8 CFR §204.5(h)(3)(iv) and (vi), the...