A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Friday, July 2, 2010

Citations of Publications not Required for Eb-1 Extraordinary Ability Visa: Kazarian vs. USCIS

In 2010, the U.S. Ninth Circuit Court of Appeal issued a decision on an Eb-1 extraordinary ability alien application filed by a theoretical physicist from Armenia. Although the Ninth Circuit denied his Eb-1 case at the end, the court held that citations are not required for scholarly publications to be considered as evidence in extraordinary ability petitions. This is a significant development in this type of immigration petitions, which are not frequently appealed to the Circuit Court. This decision will have an impact on how the USCIS adjudicate Eb-1 extraordinary ability visa petitions going forward.

The extraordinary ability visa under the Employment-based First Preference category was created for a person who possess a very high level of expertise, indicating that the individual is one of that small percentage who have risen to the very top of their field. 

Further, their achievements must have sustained national or international acclaim and that their achievements have been recognized in the field of expertise. There are two ways under the law that a person can prove extraordinary ability. First, he or she must produce evidence of a one-time achievement, usually, a major, international recognized award such as the Nobel Prize or an Academy Award. If not, the applicant must provide evidence that he or she meets at least three of the ten enumerated criteria in the regulations. These include lesser national or international prizes or awards, membership in associations which require outstanding achievements, published materials in professional or major trade publications, original authorship of scholarly articles, acting as a judge of others’ work, etc.

In this Ninth Circuit Court Eb-1 case, Kazarian v. U.S. Citizenship and Immigration Services, Mr. Kazarian conceded that he has not won a one-time major, international prize or award. Instead, he produced evidence that he has met at least three of the listed criteria. For example, he argued that he has published six scholarly papers in his field of theoretical physics in a scientific journal, which should be considered as meeting one criterion. 

After his case was denied by the USCIS, Kazarian filed an appeal with the Administrative Appeals Office (AAO) which affirmed the denial. The AAO held that since he did not produce any evidence of citations by other scientists of his publications, his articles did not meet the regulatory definition of evidence, because "publication of scholarly articles is not automatically evidence of sustained acclaim" and "we must consider the research community's reaction to these articles." 

The case reached the Ninth Circuit after a federal district court denied Kazarian’s appeal. The Ninth Circuit disagreed with the AAO, holding that the EB1A regulations do not specify that citations of published work are required, and that a government agency may not impose additional requirements during the process of adjudication.

Similarly, Kazarian also produced evidence of his review experience of graduate-level diploma work at his university to support his I-140 petition. The AAO held that reviewing the diploma works for graduate students at one's own university is not persuasive evidence of acclaim beyond that university. Instead, only evidence that an applicant served as a dissertation reviewer externally for a university with which he has no affiliation would meet the regulatory definition of evidence. Again, such an interpretation was held to be erroneous by the Ninth Circuit, noting that such a requirement does not exist in the regulations. Mr. Kazarian was found to have met this criterion too.

Although the Ninth Circuit ultimately denied the I-140 petition because Kazarian only met two of the ten criteria, the case holdings are still significant. It is expected that the USCIS will issue new guidance in regards to Eb-1 extraordinary ability visa petitions. Even though the Ninth Circuit only has jurisdiction over eleven states including California, Arizona, Hawaii, Oregon, etc., but any new policy by USCIS in this regard will likely be applied to all applications filed in the U.S.

(Published initially on 7/2/2010)



Kazarian has proven to be a curse more than a blessing for EB-1A petitioners.  USCIS did follow the Ninth Circuit Court's ruling and issued additional guidance regarding adjudication of EB-1A petitions. However, the new guidance imposed a second layer of requirement for EB-1A petitions.  Even after a petitioner has met at least 3 of the 10 evidentiary categories, USCIS must conduct a final merits determination to decide if the petitioner has indeed risen to the very top of his/her field and enjoyed international recognition.  Based on this new guidance, approval rates of EB-1A petition have steadily declined in the following decade. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

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