When the 9th Circuit decided Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (“Kazarian”) it was initially met with elation.1 Particularly compelling was the language that “neither USCIS nor an AAO [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].”2 This was a moment for rejoicing, as many of us who practice employment based immigration have long experienced unwelcome surprises in adjudicatory standards. Unfortunately, the initial pleasant surprise was quickly replaced by dismay, as USCIS was clearly intrigued by other language in the decision; namely, the suggestion of a “final merits determination.”3
The “final merits determination” language appeared as dicta in Kazarian; essentially, in its review of the AAO’s analysis of two criteria – 8 CFR §204.5(h)(3)(vi), authorship of scholarly articles in the field of endeavor and 8 CFR §204.5(h)(3)(iv), participation as a judge of the work of others – the court held that the “AAO’s conclusion rests on an improper understanding” of these criteria, as it went beyond the plain language of each of the relevant criterion. For example, the AAO found that Kazarian did not meet that language of 8 CFR §204.5(h)(3)(vi), authorship of scholarly articles, because “we must consider the research community’s reaction to these articles.” The AAO also added on to 8 CFR §204.5(h)(3)(iv), finding that judging the work of others at petitioner’s home institution was insufficient to meet this criterion.
The 9th Circuit rejected the AAO’s interpretations, noting, respectively, that “nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence” and “nothing in that provision suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with.” Citing Love Korean Church v Chertoff, 549 F.3rd 749, 758 (9th Cir. 2008), the court held that “neither the USCIS nor an AAO may unilaterally impose novel substantive evidentiary requirements beyond those set forth at 8 CFR § 204.5(h)(3).” Therefore, the AAO erred in its interpretation of 8 CFR §204.5(h)(3)(vi) and 8 CFR §204.5(h)(3)(iv). End of decision. Or not.
Rather than conclude the decision there, the court in Kazarian continued “while other author’s citations (or lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence. 8 CFR § 204.5(h)(3)” (emphasis added).4 The court reiterated this phrase in commenting on the AAO’s added requirement of no affiliation in 8 CFR §204.5(h)(3)(iv), which again, it noted, “might be relevant to a final merits determination” (emphasis added).5
It was thus that the Kazarian two-step analysis was born. Introduced to stakeholders in Policy Memo (PM), “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” PM-602-0005 (December 22, 2010)6 (PM-602-0005)), USCIS formally adopted the 9th Circuit’s dicta noting:
USCIS agrees with the Kazarian court’s two-part adjudicative approach to evaluating evidence submitted in connection with petitions for aliens of extraordinary ability: (1) Determine whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for 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 required high level of expertise for the extraordinary ability immigrant classification during a final merits determination….
The two-part adjudicative approach to evaluating evidence described in Kazarian simplifies the adjudicative process by eliminating piecemeal consideration of extraordinary ability and shifting the analysis of overall extraordinary ability to the end of the adjudicative process when a determination on the entire petition is made (the final merits determination). Therefore, under this approach, an objective evaluation of the initial evidence listed at 8 CFR 204.5(h)(3) will continue as before; what changes is when the determination of extraordinary ability occurs in the adjudicative process.7
While PM-602-0005 suggested that the “two-part adjudicative approach to evaluating evidence described in Kazarian simplifies the adjudicative process,” the period immediately following its adoption was wrought with confusion – particularly with regards to EB-1A adjudications.8 In its memo, USCIS provided almost no guidance as to how adjudicators should apply the “final merits analysis,” while at the same time, seemingly ignoring, but not overruling, existing federal court decisions that did provide clear guidelines.9 As a result, there was significant concern that in Part II, adjudicators could deny a petition based on nothing more than their own gut feeling that the beneficiary is not one of the small percentage who has risen to the top. Moreover, in practice, adjudications continued to hold that each criterion must independently support the conclusion that petitioner is one of a small percentage at the top of her field. The difference now was that the adjudicator more readily gave the petitioner credit for the criterion in Part I of the analysis, only to undermine the weight of the evidence in Part II, the final merits analysis. For example, the adjudication may acknowledged evidence of judge of the work of others in Part 1, only to find “it must be demonstrated that his sustained national or international acclaim resulted in his selection to serve as a judge of the work of others” in Part II. Thus, initially, it seemed that we moved two steps forward and five steps back.
Moving circular reasoning from Part I to Part II may not have been what was intended by PM-602-0005, which provided that in Part II, the final merits analysis, the evidence should be evaluated cumulatively to determine if taken together it meets the regulatory standard. However, whereas the memo itself, and now the Adjudicators Field Manual (AFM), provides a detailed analysis of each criterion and the factors to consider in determining whether the evidence satisfies the requisite number of regulatory criteria, there is little guidance or instruction as to how to apply the “totality of the evidence.” Interestingly, the only specific examples given for the final merits are those noted in the Kazarian decision itself; namely: “As part of the final merits determination, the quality of the evidence also should be considered, such as whether the judging responsibilities were internal and whether the scholarly articles (if inherent to the occupation) are cited by others in the field.”10 Yet this seems contrary to PM-602-0005’s stated intention to “eliminate[e] piecemeal consideration of extraordinary ability.”
Without further guidance, the “totality of the evidence” certainly leaves a lot open for subjective interpretation. Nevertheless, we now have more than seven (7) years of experience with the Kazarian two-part adjudicative approach. Writing from that perspective (anecdotally), the experience of this author is that adjudicators seem more often to challenge whether the evidence is sufficient to establish the criteria in Part I, thereby avoiding the final merits analysis in Part II.11 This supposition that most denied EB-1A cases are decided based on insufficient evidence to establish the requisite three (3) criteria, and not because of a negative final merits determination, is borne out by AAO decisions. An informal survey of more than 100 AAO decisions in 2017 reveals that less than ten (10) per cent involved a Kazarian final merits analysis;12 the vast majority of appealed decisions hinge on the first part of the analysis, whether there was sufficient evidence to establish at least three (3) criteria. While an interesting study can be made of the AAO’s interpretation of each of the regulatory criterion at 8 CFR §204.5(h)(3), the scope of this article is focused on decisions based on a final merits determination. In other words, when is three (3) not enough?
The 2017 AAO Kazarian-based EB-1A decisions do provide some insight into the government’s application of the final merits analysis. One insight is that the AAO, like many of us, continues to struggle with the “totality of the evidence” concept, and instead tends to single out specific criteria that seem to be lacking. In dismissing the appeal in Matter of M-T- (August 17, 2017), for example, the AAO did not evaluate the evidence as a whole, but rather found that each criterion did not, in and of itself, demonstrate that the petitioner was one of a few at the top. It affirmed the denial on the basis that petitioner did not provide “national or international level press coverage” for his awards, that a published interview with the petitioner did not “demonstrate sustained national or international acclaim,” that evidence submitted to establish judge of the work of others did not “demonstrate how his work on this committee is indicative of his standing in the field,” that his membership in an association did not show that “being chosen is commensurate with achievement at the top of the engineering field,” and that his role on the Board of Directors was not “commensurate with one of that small percentage who has risen to the very top of the field.”
This is not to say that the AAO’s decision in Matter of M-T- was wrong, just that it was decided based on the piecemeal approach that USCIS sought to eliminate by adopting Kazarian’s two-part adjudication. A totality of the evidence approach may instead have addressed the fact that most of the petitioner’s achievements were more than a decade old, and that there was little to suggest that, as a whole, he had continued to “sustain national or international acclaim.” For example, petitioner in this case received an award for best article in 1999, the article in which he was interviewed was published in 2000, he served on a review panel in 2002, and he stepped down from his seat on the Board of Directors in 2003. In addition, it appears that petitioner had not published since 1999. Petitioner’s response to this gap was to argue that his reputation “increased but it has increased in secret among the people at the very top levels of”13 his field, an argument which the AAO rightly dismissed, as petitioner “must establish that all eligibility requirements for the immigration benefit have been satisfied from the time of filing.”14
In another decision, Matter of J-C- (May 12, 2017), the AAO found that the Texas Service Center (TSC) denial based on a negative final merits analysis was misplaced, as the case should have been denied based on failure to meet three criteria. However, in this case, the AAO’s analysis seems more on point. For example, it rejected the evidence submitted to establish 8 CFR §204.5(h)(3)(vi) – authorship of scholarly articles – finding that the partial translations of the published material provided no evidence to show that such publications were scholarly, and no evidence was included to demonstrate that the articles appeared in professional or major trade publications or other forms of major media. It also rejected the evidence submitted to establish 8 CFR §204.5(h)(3)(iv) – judge of the work of others – since the petitioner provided no evidence that he actually judged the competition. The decision also took issue with the evidence of petitioner’s leading and critical role (§204.5(h)(3)(viii), as nothing was submitted to demonstrate that the “company enjoys a distinguished reputation.” The AAO affirmed the denial on the basis that petitioner met only one of the regulatory criterion, not reaching a final merits analysis.
The AAO also questioned whether the final merits analysis was the appropriate stage at which to consider deficiencies in 8 CFR §204.5(h)(3)(v), original contributions of major significance: Matter of P-B-S- (June 28, 2017), Matter of L-D-B- (August 22, 2017), Matter of K-S- (October 12, 2017), and Matter of H-K-B-R- (October 25, 2017). Each of these cases was denied by the Nebraska Service Center (NSC) based on a negative final merits determination. However, in its de novo review of these cases, the AAO found that while it agreed with the NSC’s concerns about, inter alia, this criterion, it wavered between whether such concerns would be more appropriately addressed in Part I of the analysis, or in Part II. For example, in Matter of K-S-, the AAO determined in a Part I analysis that “the petitioner has not submitted sufficient documentary evidence…Accordingly, the Director’s determination on this issue will be withdrawn.”15 On this basis, the AAO stated “thus, we do not need to fully address the totality of the materials in the final merits determination.”16 Taking a somewhat different approach, in Matter of L-D-B- and Matter of H-K-B-R-, the AAO noted that “Although we find the record does not support the Director’s determination that she has made original contributions of major significance, we will evaluate the totality of her documentary evidence in the context of the final merits determination.”17 And again, in Matter of P-B-S-, the AAO noted that “we share the Director’s concern about the significance of the Petitioner’s contributions…. As that issue is a qualitative one and the Director’s basis of denial was set forth in a final merits determination, we will, in this case, address it at that stage of our analysis.”18
Whether considered in a Part I analysis or as part of a Part II final merits determination, the AAO’s evaluation of what makes an “original contribution” rise to the level of “major significance” is the same, with the AAO heavily weighing evidence that petitioner’s findings “have affected the field in a major way, that his research has been widely utilized or heavily cited, or that his work otherwise constitutes contributions of major significance.”19 In rejecting the “major significance” of K-S-‘s original contributions, the AAO singled out two of K-S-‘s articles, noting not only that they were cited 15 and 13 times, respectively, but also that several of these were “self-citations.” The AAO acknowledges that “citations can confirm that the field has taken interest in a researcher’s work,” but finds that the submitted examples of citations did not reflect that petitioner “work was singled out as particularly important. Rather, the Petitioner’s findings were utilized as background information.”20 The AAO separately considered the expert testimonials, quoting one from “a senior physical scientist… that her division used the Petitioner’s findings ‘related to the production of sea surface temperature retrievals’ to create an ‘improved version of sea surface temperature analysis.’” Of note, the AAO found that the other letters quoted did “not offer specific examples of such utilization.” Ultimately, the AAO found that “while the Petitioner’s employers and project collaborators have utilized his work, this does not necessarily reflect that his research is considered of major significance in the field.”21 The AAO used similar reasoning in affirming the denial in Matter of P-B-S-; however, in this case, it shifted its analysis to Part II, the final merits analysis.
The AAO also analyzed original contributions of major significance in the final merits analysis in Matter of L-D-B- and Matter of H-K-B-R-, highlighting the lack of implementation or impact of Petitioners’ original contributions as a basis to find that neither’s was of major significance. For example, in Matter of H-K-B-R-, the AAO rejected “three provisional patent applications that were filed in May 2016” as evidence of major significance, finding that “a patent recognizes the originality of an individual’s invention but does not necessary (sic) demonstrate that it has been of major significance in the field.”22 Similarly, in Matter of L-D-B-, the AAO recognized that the expert testimonials stated that Petitioner’s work has been “a true breakthrough,” but found that to be insufficient since “they do not show how her contributions have been widely implemented or utilized in the field.” The AAO also highlighted a gap in the period of time between achievements as a basis for a negative final merits determination. For example, in Matter of H-K-B-R, the AAO noted a “nine-year gap between the Petitioner’s publications and two of the three articles were published within a year of the filing of his petition” and in Matter of L-D-B-, the AAO noted that “Petitioner has not published any scholarly work since 2013,” and that “she did not show any [manuscript] reviews from 2009 to 2014.”23 In both these decisions, the AAO cites to legislative history for the proposition that neither of these Petitioners demonstrate a career of acclaimed work in the field as contemplated by Congress H.R. Rep 101-723, 59 (Sept 19, 1990).
A few cases initially denied for meeting only two criteria were sustained on appeal after the AAO determined in Part I that a third criterion was met, and in Part II, that a favorable final merits determination was warranted. In both Matter of A-M-I (September 28, 2017) and Matter of J-A-J- (November 28, 2017), the third criterion was original contributions of major significance. Matter of A-M-I- is interesting as it is one of the few cases in which the AAO did not focus on volume or duration; rather it focused on impact in the field. Recognizing that Petitioner debunked “the most widely accepted theory of the universe’s earliest moments since the early 1980s,” the AAO emphasizes that Petitioner’s publications “prompted the creator of the inflationary theory…to write a paper addressing her work” and that “one of the main authors of the accepted inflationary theory dedicated an entire talk …to address the Petitioner’s theory.” The AAO’s analysis reverted back to volume in Matter of J-A-J-, commenting on the “thousands of citations to his published work from 2007 to present.” In its decision, the AAO also gave weight to recommendation letters stating that “Petitioner’s ‘novel designs and process approaches have revolutionized the way in which we in the physics field are able to conduct experiments” and noting that “the stacked pixel detector pioneered by [the Petitioner] has become the baseline for the new…experiment.” The AAO also used the language “career of acclaimed work in the field” in both of these decisions.
In Matter of K-G- (November 16, 2017) the third criterion recognized by the AAO was 8 CFR §204.5(h)(3)(iii), published material about the alien. The AAO noted that “Petitioner provided several feature articles and full-length interviews about her work which were published in national newspapers in Nepal”24 sufficient to meet this criterion. Having established three criteria for Part 1, the AAO moves to Part II, the final merits analysis, citing Petitioner’s receipt of “several awards that have recognition at the national level,” as well as her long service as “one of six credited associate editors of the most widely-circulated newspaper in Nepal…where she has earned numerous accolades from the highest public officials in Nepal, demonstrating a degree of recognition and name exposure consistent with national acclaim.”25 It also highlights the “national impact” of her reporting, which was “’instrumental’ in bringing …issue[s] to the forefront of Nepali constitutional debate and ultimately leading to a change to the Nepali constitution.”26 The decision does not use the “career of acclaimed work in the field” language, using instead the statutory language of “one of a small percentage at the very top of the field of endeavor.”
Of the decisions surveyed in the AAO public database, only one denied on a negative final merits determination was sustained on appeal, Matter of X-X- (March 10, 2017). In reversing the NSC, the AAO noted that “the documentation provided shows the high esteem attributed to the Petitioner in his native China, the United States, and other countries.” The AAO highlighted Petitioner’s role in overseeing major airport projects in Kenya, New York, New Jersey, and Pennsylvania, commenting on a newspaper article noting that “he is responsible for designing the new development for….in ….Kenya, which is increasing its capacity from 1.5 to 20 million people.”27 his receipt (twice) of a national award in China for “fundamental research…in the field of masonry structures, and active participation in developing and revising China’s national standard,”28 as well as his selection to serve on a U.S. government panel based “on his high expertise in the highly technical field of airport infrastructure as it relates to safety.”29 This decision was perhaps most interesting for what it omits; namely, any mention of the actual regulatory criteria met by the Petitioner. It simply states that it “agrees that the Petitioner has provided evidence that satisfies the necessary initial evidenced criteria. The outstanding issue is therefore whether the totality of evidence demonstrates that he is an individual of extraordinary ability…we conclude that the Petitioner has shown a history of achievements and experience indicative of someone at the top of his field of endeavor.”30
The AAO decisions analyzed in this article provide significant insight into the Service’s application of the Kazarian final merits. These cases demonstrate that the final merits determination is not the license to deny cases that many of us feared it would be when it was introduced in 2010. In fact, only 10% of EB-1A cases decided at the AAO in 2017 even involved a question of final merits. In several of these, the AAO affirmed the denial but not the basis, holding that the analysis should have ended in Part I. These decisions also revealed that the two-part adjudicative approach did not, as USCIS hoped at the time, simplify the process, with the AAO finding that a Part I analysis belonged in Part II and vice versa. Yet separate and apart from the question of whether evidence is considered in Part I or Part II analysis, the focus of the analysis remains on the evidentiary criteria enumerated at 8 §204.5(h)(3). In that respect, seven years after Kazarian as adopted, has anything really changed?
1 AILA Doc 10030421
2 Kazarian at 3440-3441
3 Kazarian at 3441
4 Kazarian at 3440.
5 Kazarian at 3441.
7 See also Adjudicator’s Field Manual (AFM) §22.2, “Special Considerations Relating to EB-1 Cases” at 255-259 (AILA 2011).
8 Both PM-602-0005 and AFM §22.2 apply the two-part approach to EB-1A (aliens of extraordinary ability), EB-1B (outstanding researcher and professors), and aliens of exceptional ability; however, the scope of the article is limited to EB-1A.
9 “Once it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 CFR §204.5(h)(3), the alien must be deemed to have extraordinary ability.” (Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994)), (see also Gulen v. Chertoff, 2008 WL 2779001 (E.D.Pa), Muni v. INS, 891 F. Supp 440 (N.D. Ill. 1995), Racine v. INS, U.S. Dist. LEXIS 4336 (1995)).
10 AFM at 259.
11 Based on amicus curiae sought from the public, the AAO non-precedent decision dated March 27, 2015 (AILA Doc 15040763) purported to describe the appropriate application of the Kazarian two-step review. According to this decision, the final merits analysis is only necessary if the petitioner submits evidenced that meets at least three of the criteria. This decision is also interesting in its attempt to differentiate Buletini, as well as in holding that one membership is sufficient to establish the criterion at 8 CFR §204.5(h)(3)(ii), membership in associations that require outstanding achievement in the field.
12 Survey was based on decisions posted on https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao/aao-non-precedent-decisions. Interestingly, two of the cases identified were abandoned/withdrawn following allegations of material misrepresentation (Matter of Q-Q-, September 19, 2017; Matter of G-S-, August 4, 2017).
13 Matter of MT, op cit, at 6.
15 Matter of K-S, op cit, at 4
16 Id. at 7.
17 Matter of L-D-B-, op cit, at 2 and Matter of H-K-B-R-, op. cit, at 2.
18 Matter of P-B-S-, op cit, at 3.
19 Matter of K-S- at 4.
20 Id. at 3.
21 Id. at 4.
22 Matter H-K-B-R- op cit at 5. The AAO used similar language in rejecting the importance of a patent in Matter of P-B-S- op cit at 5.
23 Matter of L-D-B- op cit at 4.
24 Matter of K-G- op cit at 4
27 Matter of X-X- op cit at 2 – 3.
28 Id at 3.
30 Id at 2.