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By Ben Wisniewski

On August 18, 2010, U.S. Citizenship and Immigration Services (USCIS) released a new interim memo which clarified the method of analysis USCIS officers must use in adjudicating Form I-140, Immigrant Petition for Alien Workers, filed for 1) Alien of Extraordinary Ability EB1A cases; 2) Outstanding Professor or Researcher EB1B cases; and 3) Alien of Exceptional Ability EB2 cases. The requirements for these types of I-140 petitions have not changed but this new method of evaluating the merits of cases may adversely impact those applying for immigration in these categories. 

This interim memo is a response to the U.S. 9th Circuit Court of Appeals decision in Kazarian v. USCIS on March 4, 2010. In the Kazarian ruling, the court held that USCIS was being too strict in deciding EB1A petitions by requiring extensive citation evidence and specific types of peer review work in order to meet the EB1A criteria. However, the court did rule that USCIS could consider evidence such as extensive citations in making a final merits review of the case to determine whether an alien is at the very top of his or her field. For further information on this case, please see our website’s article entitled, “9th Circuit Court of Appeals Rebuts USCIS and AAO on EB-1A Evidentiary Standards”. 

In essence, the new USCIS interim memo breaks the evaluation process up into two parts – 1) evaluating whether the applicant meets the baseline criteria for the immigration category and 2) determining whether the applicant’s evidence demonstrates the required high level of expertise for the immigration category. In the second part of the review process the USCIS will evaluate the evidence to see if, as a whole, it proves by a preponderance of the evidence that the applicant is at the very top of his or her field of endeavor. This article will explain how the evaluation will be handled for affected EB1A and EB1B I-140 petitions.

New Evaluation Process For EB1A Cases

For the first step in evaluating EB1A cases, the officer will check to see if evidence is provided to show that the applicant has met at least three of the following ten criteria:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;  
   
   
2. Documentation of the alien's 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;
   
   
3. Published material about the alien in professional or major trade publications or other major media relating to the alien's work in the field for which classification is sought;
   
   
4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
   
   
5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
   
   
6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
   
   
7. Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
   
   
8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
   
   
9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;
   
   
10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

After the officer has determined by a preponderance of the evidence that at least three of these criterion have been met, he or she moves into the second part of the review. For EB1A cases, the second part of the review involves determining whether the applicant has achieved a level of expertise indicating that he or she is one of a small percentage who has risen to the very top of the field of endeavor, he or she has shown sustained national or international acclaim, and his or her achievements have been recognized in the field of expertise. This basically means that the officer will look at all the evidence as a whole and determine if the case is approvable. This new standard may decrease the number of approved cases since, by implementing this secondary review process, USCIS officers have the discretion to deny cases even if three EB1A criteria have been technically met. 

New Evaluation Process For EB1B Cases

For the first step in evaluating EB1B cases, the officer will check to see if evidence is provided to show that the applicant has met at least two of the following six criteria:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
   
   
2. Documentation of the alien's 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;
   
   
3. Published material about the alien in professional or major trade publications or other major media relating to the alien's work in the field for which classification is sought;
   
   
4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
   
   
5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
   
   
6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

For the second part of the review for EB1B cases, the officer will make a final merit determination on whether or not the applicant has, by a preponderance of the evidence, demonstrated that he or she is recognized internationally as outstanding in a specific academic area.  Therefore, simply showing that two of the criterion have been met does not necessarily mean that the case will be approved. This, in turn, greatly expands the USCIS officer’s discretion in deciding which cases to approve. 

Conclusion

Prior to this USCIS memo, the evidence was evaluated only in the context of meeting the necessary criteria for each type of case. Now by adding a second “final determination on the merits” phase of review, USCIS officers have more flexibility in denying cases or issuing Request For Evidence notices even if the baseline criteria has been met. This memo essentially gives the USCIS officer wider discretion in adjudicating EB1 cases since it has added a new level of review which follows a fairly subjective standard. As a result it is very possible that immigration through the EB1A, EB1B, and EB2 Exceptional Ability categories will become more difficult than it has been in the past. However, due to the recent immigrant visa retrogression for people born in India and China, there is an increasing number of Chinese and Indians who choose to apply through the EB1A or EB1B categories rather than wait for visa availability in the EB2 category. Therefore, it recommended that people who wish to apply in these categories consult a qualified immigration professional before proceeding. 

From January to July 2010, our firm received 112 EB-1 case approvals. If you are interested in contacting us for a free consultation, please call our offices at 1-800-230-7040 or email us at info@hooyou.com. One of our experienced attorneys will meet with you to discuss your options.

*Ben Wisniewski is an associate attorney with Zhang & Associates, P.C. at the New York Office.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fourteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(08/30/2010)

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