On Friday, January 21st, USCIS posted the final E-1-1 RFE template for extraordinary ability petitions. USCIS indicated that it will leave this template posted on their website until February 4th, giving stakeholders an opportunity to access and review. This document provides important information as to how USCIS adjudicators review and evaluate the regulatory criteria. While we appreciate the transparency USCIS offers by providing stakeholders access to this document, it seems that after February 4th, this template will no longer be available to the public.
On initial review, USCIS appears to have incorporated some of the changes suggested by the American Immigration Lawyers Association (AILA) with regards to evaluating individual criteria. These suggestions are discussed in my article “Dissecting USCIS’ E-1-1 RFE Template.” However, USCIS provides almost no guidance as to how adjudicators should apply the “final merits analysis”, despite the fact that several federal court decisions provide clear guidelines. The lack of guidance suggests that adjudicators can 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.
In addition, the E-1-1 RFE template is only one side of the equation. USCIS not released the final memo implementing Kazarian. Given the differences between how some criteria are evaluated in the memo versus how they are evaluated in the E-1-1 RFE template, it leaves open the question of which will take precedence.