USCIS and INS have consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant classifications as aliens of extraordinary ability. In order to qualify for admission in this classification, an alien must, among other things, demonstrate sustained national or international acclaim and that his or her achievements have been recognized in the alien’s field of expertise in accordance with INA 203(b)(1)(A).
Qualification under this classification is reserved for the small percentage of individuals at the very top of their fields of endeavor. The regulation at 8 CFR 204.5(h)(3), published in the Federal Register at 56 Fed. Reg. 60897 (Nov. 29, 1991), provides that a petition for an alien of extraordinary ability must be accompanied by initial evidence that the alien has achieved the requisite acclaim and recognition in the alien’s field of expertise. Such evidence must be either a one-time achievement (that is, a major, internationally recognized award) or at least three out of the ten other types of evidence listed in the regulation (e.g., scholarly articles, high salary, commercial successes).
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the Administrative Appeals Office’s (AAO) dismissal of a petitioner’s appeal of a denial of a petition filed under 203(b)(1)(A) of the INA. Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010). Although affirming the decision, the Ninth Circuit found that the AAO erred in its evaluation of the initial evidence submitted with the petition pursuant to 8 CFR 204.5(h)(3). Specifically, the Ninth Circuit concluded that while USCIS may have raised legitimate concerns about the significance of the evidence submitted, those concerns should have been raised in a subsequent “final merits determination” of whether the petitioner has the requisite extraordinary ability. The Ninth Circuit further stated that the concerns were “not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence.”
Kazarian involved an extraordinary ability petition under INA § 203(b) (1)(A)(i), which is the employment-based first preference category (EB-1), through which an alien obtains lawful permanent residence. While the extraordinary ability criteria under the EB-1 may be identical to the O-1 extraordinary criteria for science, education, business and athletics, the criteria for extraordinary achievement in the motion picture and TV industry and for distinction in the arts are markedly different. Moreover, the O-1 visa petition requires a consultation from a union or expert opinion.
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. By contrast, the approach taken by USCIS officers in Kazarian collapsed these two parts and evaluated the evidence at the beginning stage of the adjudicative process, with each type of evidence being evaluated individually to determine whether the self-petitioner was extraordinary.
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. USCIS believes that this approach will lead to decisions that more clearly explain how evidence was considered, the basis for the overall determination of eligibility (or lack thereof), and greater consistency in decisions on petitions for aliens with extraordinary ability.
Objectively meeting the regulatory criteria in part one alone does not establish that the alien in fact meets the requirements for classification as an Alien of Extraordinary Ability under section 203(b)(1)(A) of the INA. USCIS officers should use a two-part analysis to evaluate the evidence submitted with the petition to demonstrate eligibility under 203(b)(1)(B) of the INA. First, USCIS officers should evaluate the evidence submitted by the petitioner to determine, by a preponderance of the evidence, which evidence objectively meets the parameters of the regulatory description applicable to that type of evidence (referred to as “regulatory criteria”). Second, USCIS officers should evaluate the evidence together when considering the petition in its entirety for the final merits determination regarding the required high level of expertise for the immigrant classification.
For example, participating in the judging of the work of others in the same or an allied field of specialization alone, regardless of the circumstances, should satisfy the regulatory criteria in part one. However, for the analysis in part two, the alien’s participation should be evaluated to determine whether it was indicative of the alien being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.
Publishing scholarly articles in professional or major trade publications or other major media alone, regardless of the caliber, should satisfy the regulatory criteria in part one. However, for the analysis in part two, the alien’s publications should be evaluated to determine whether they were indicative of the alien being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.
The issue related to whether the alien is one of that small percentage who have risen to the very top of the field of endeavor and enjoys sustained national or international acclaim should be addressed and articulated in part two of the analysis, not in part one where the USCIS officer is only required to determine if the evidence objectively meets the regulatory criteria.
When it comes to the O-1 visa, what does this all mean?
What may be the most hard to detect damage resulting from invoking Kazarian in the O-1 arena is the fact that the evidence submitted by an O-1 petitioner is now to be judged by criteria that cannot be defined or even anticipated in advance.
For an O-1 petition, the adjudicator must determine whether the alien meets the standards as outlined in the regulations; however, he/she cannot make a favorable determination simply because the petitioner has submitted three of the forms of documentation mentioned. It must be a decision based on whether the total evidence submitted establishes that the alien of extraordinary ability has sustained national or international acclaim and recognition in his field of endeavor; or in the case of an alien of extraordinary ability in the arts and extraordinary achievement in the motion picture or television industry, whether he or she has a demonstrated record of high level achievement (“distinction”) or extraordinary achievement respectively.
However, it is not clear whether the USCIS intended to specifically apply the Kazarian “final merits determination” approach. The USCIS, and the predecessor Immigration and Naturalization Service, has always insisted that the alien overall meet the standard of extraordinary ability, but this was never meant to be as expansive as the Kazarian final merits determination. Rather, under the standard set by a prior decision, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), the burden was on the government to set forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability. Kazarian was also a decision that deals with the extraordinary criteria under the EB-1, while the O-1 visa has three different standards – extraordinary ability, extraordinary achievement and distinction. It is not clear as to how exactly the “final merits determination” standard would apply to extraordinary achievement and distinction.
The impact of what charitably be called “doctrine creep” is not hard to fathom. If the USCIS were to use the Kazarian final merits analysis on top of the already existing adjudicatory regiment, the meaning of “extraordinary ability” would be transformed beyond recognition. When Congress enacted the standards for visa petitions, it intended adjudicators to faithfully apply those standards to either approve or deny the petitions. The infusion of the Kazarian “final merits determination” to visa adjudications would allow USCIS adjudicators to impermissibly stray from those standards, and add needless subjectivity into the decision making process.
Whether we like it or not, the two part test, based on the USCIS’s interpretation of Kazarian is here to stay with us – at least for now. Post Kazarian decisions have generally affirmed the two-part test and final merits determination analysis notwithstanding the holding in Buletini, which held, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Under this burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts onto the Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was fraudulent or too dated and stale. Moreover, even while courts have adopted the final merits analysis, they seem to also be upholding the USCIS’s conflation of the step one analysis with the step two analysis.
So now that we have a general idea of the murky waters the O-1 adjudicatory process lies within, what can we do?
When putting together an optimal O-1 visa petition, it is important to have at least an understanding and appreciation of the two-part approach as well, and be able to communicate to the O-1 adjudicator how the individual pieces of evidence, when put together as a whole, qualifies the beneficiary as one of extraordinary ability who rises either significantly (motion picture or television) or substantially (arts) above those in his or her respective field, or one of the small percentage who has risen to the very top of the field of endeavor (science, education, business or athletics). Regardless of the two-part test, quality should always precede quantity, and therefore, the agile O-1 petition preparer may look to omit weaker pieces of evidence or position them towards the back, placing less emphasis on them compared to the stronger evidence placed towards the front that will be more readily apparent to the adjudicator.
While it is logical to include the argument in the record that the final merits determination is inapplicable and to propose the burden shifting Buletini approach instead, it also behooves a petitioner to argue that his or her client merits a favorable adjudication under the “final merits determination” analysis in post Kazarian decisions. The amorphous nature of this standard allows the petitioner’s attorney flexibility to make a broad argument just as it gives the USCIS examiner the same flexibility to approve or not approve a case even after the petitioner has submitted evidence under the evidentiary criteria.
For example, if a petitioner has met 3 out of 10 evidentiary criteria, you may be able to proposition that the petitioner has demonstrated to be among the small percentage who has risen to the top of the field, sustained national or international acclaim, and recognition of achievements, by highlighting only the strongest evidence rather than evidence submitted under all three criteria. If the scholarly articles are very impressive, but the awards are not and the petitioner may have judged the work of only one PhD student, then the focus could be on the impressive scholarly articles when qualifying him or her under the final merits determination.
Furthermore, under the final merits determination, a petitioner may be able to include other types of evidence that may not fall within the prescribed USCIS evidentiary criteria, such as testimonials from eminent authorities in the field, as well as petitioner’s outstanding academic background. Of course, if the evidence submitted under the evidentiary criteria is all qualitatively superior and extensive, then one must not rest on these laurels and take pains to highlight this for the final merits determination. Finally, it is important to always remind the USCIS that a favorable opinion from the relevant union for an artist ought to be given deference, and that the final merits determination is governed by the preponderance of evidence standard, which requires only 51% certainty.
For more information on the O visa classification, contact our Immigration Practice Group at 718-539-1100 or info@jckimlaw.com.
*This blog contains key excerpts from the USCIS Policy Memorandum dated December 22, 2010, “Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22.2, AFM Update AD11-14”