The U.S. 9th Circuit Court of Appeals issued a decision in Kazarian v. USCIS on March 4, 2010 which, although ultimately decided against the petitioner, rebuts United States Citizenship and Immigration Services (USCIS) and the Administrative Appeals Office (AAO) regarding considering evidence of citations and judging the work of others for EB-1(a) extraordinary ability petitions.     

This decision gives petitioners without heavy citation of their work or extensive service as a judge of the work of others outside their institution the opportunity to contest the USCIS’s recent reliance on these requirements, which the 9th Circuit finds is not based on explicit legal authority.

Clients without extensive citations (but with a good body of published work) and with experience as judges of the work of others at their affiliated institutions may have stronger EB-1(a) petitions than before based on what the Ninth Circuit has ruled in this case. 

EB-1(a) Extraordinary Ability Petitions

 “Alien of Extraordinary Ability” petitions are for the most accomplished members in business, arts, athletics, science, and education. The EB-1(a) has several advantages over other employment-based categories. For one, the EB-1(a) does not require an applicant to undergo the labor certification process or have a permanent job offer.  Second, an alien can self-petition without sponsorship from an employer. Third, for an additional $1,000, petitioners can opt for premium processing, which guarantees a response from USCIS in 15 calendar days.  After receiving I-140 approval, petitioners must wait for a visa number to become available in order to file an I-485.  However, as visa numbers are usually current in the EB-1 category, petitioners from heavily backlogged countries like China and India can receive a green card much faster than through the EB-2 or EB-3 categories. 

EB-1(a) Standard:  Evidentiary Burden of Proof is on Petitioner

A petitioner can successfully apply for an EB-1(a) extraordinary ability petition either if s/he has a single major, international recognized award (e.g. a Nobel prize) or, far more commonly, by proving evidence of at least three of the following ten criteria:

(i) Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(ii) Membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(iii) Published material about the petitioner in professional or major trade publications or other major media, relating to their work in the field for which classification is sought.

(iv) Participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;

(v) Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

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

(vii) Display of the petitioner’s work in the field at artistic exhibitions or showcases;

(viii) Performing a leading or critical role for organizations or establishments that have a distinguished reputation;

(ix) Commanding a high salary or other significantly high remuneration for services, in relation to others in the field; or

(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

The burden of proof in establishing a claim of extraordinary ability lies with the petitioner.  Nevertheless, USCIS and the AAO must abide by applicable federal law in their adjudication of petitions.  In this case, the 9th Circuit found that USCIS and AAO had committed legal errors in their consideration of Mr. Kazarian’s petition regarding elements (iv) and (vi) above. 

Background on Decision

Petitioner Kazarian, a theoretical physicist, applied for an EB-1A immigrant visa in 2003 which USCIS denied in 2005.  Mr. Kazarian then appealed the denial to the AAO, the U.S. government agency which considers appeals of USCIS decisions.  The AAO dismissed his appeal, finding that Mr. Kazarian failed to satisfy any of the evidentiary criteria he needed to show in order to qualify for the extraordinary ability visa.  Mr.  Kazarian then filed a complaint in the Federal Central District of California, which granted USCIS’s motion for summary judgment, thereby dismissing Mr. Kazarian’s case.  Mr. Kazarian then appealed to the highest court in his geographic area, the 9th Circuit Court of Appeals.   

9th Circuit Decision:  USCIS and AAO Committed Legal Errors

This decision was the first time the 9th Circuit had considered the issue of the evidentiary standard in extraordinary ability immigrant visa petition cases.  The court found that the AAO erred in its consideration of two of Mr. Kazarian’s claimed criteria, nevertheless, because Kazarian needed to meet a minimum of three criteria in order to be eligible for the visa, the court ultimately ruled against him since even with the court’s decision he met only two criteria.  

Mr. Kazarian had submitted proof of six published articles and an archived e-print, but did not show that other scholars had cited his publications. The AAO held that without evidence of such citations, Mr. Kazarian’s articles did not meet the regulatory definition of evidence, because “publication of scholarly articles is not automatically evidence of sustained acclaim” and “[AAO] must consider the research community’s reaction to these articles.”

The 9th Circuit held that the AAO’s conclusion was based on an improper understanding of the statutory requirement, stating that “nothing in [the relevant provision] requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5.”

Nevertheless, the court did state that other authors’ citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field. 

Regarding participation as a judge of the work of others, Mr. Kazarian had submitted proof that he was a judge of graduate-level diploma works at his graduate institution.  The AAO held that “reviewing ‘diploma works’ for fellow students at one’s own university is not persuasive evidence of acclaim beyond that university,” and that without “evidence that the petitioner served as an external dissertation reviewer for a university with which he is not otherwise affiliated,” Mr. Kazarian’s submission did not meet the prescribed regulatory definition of evidence.

The 9th Circuit disagreed, stating that “nothing in the relevant statutory provision suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with.”  The court added that “while the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement.”

Significance of 9th Circuit Decision

The U.S. federal circuit court system is divided into 13 circuits, with the U.S. Supreme Court the ultimate arbiter of disputes among the circuits.  The 9th Circuit encompasses the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada and Washington. 

Since immigration law is federal, disputes arising out of administrative decisions from USCIS or the AAO are adjudicated in the federal courts. 

The Texas and Nebraska USCIS Service Centers which consider EB-1A petitions do not fall under the jurisdiction of the 9th Circuit.  Nevertheless, regardless of where these agency decisions are made, petitioners can appeal these decisions to their local federal district court and then to the relevant circuit court.  If a petitioner who originally filed a petition to USCIS in Nebraska lives in Chicago and USCIS in Nebraska and the AAO rules against him/her, s/he would take his/her case to the Northern District of Illinois and then the 7th Circuit, if necessary, instead of having to file in the District of Nebraska and the 8th Circuit.  In this case, the 9th Circuit decision is persuasive authority but not necessarily binding outside of the 9th Circuit’s jurisdiction, nonetheless the decision can be strongly presented to USCIS and any federal district or circuit court.

However, a case such as this one, seeing several years of appeals, is atypical. Typically, most applicants do not appeal to such levels because of the expense and time involved.  To immigrate to the United States, there are many avenues that applicants can take.  If denied, an applicant can choose to re-file a petition or submit a petition in a different category, which may save both time and money.  For instance, if a petitioner applies for both an EB-1(a) and a National Interest Waiver, and his/her EB-1(a) is denied, but NIW is approved, then the applicant can certainly re-file an EB-1(a) at a later date.