USCIS Changes the Rules for Adjudicating for all EB-1 Green Card Cases

The United States Citizenship and Immigration Service has recently announced the manner in which it intends to re-write the standards by which it adjudicates Employment Based Green Card Petitions filed under the EB-1 preference category for Aliens of Extraordinary Ability, Outstanding Professors and Researchers as well as alien’s of Exceptional Ability (usually executives). Filing for a Green Card under the EB-1 preference category allows foreign nationals who wish to become permanent residents, the chance to completely bypass the PERM process and file the I-140, Petition for an Immigrant Worker directly to the USCIS. After years of adding extraneous requirements to the federal regulations coving the topic of EB-1, the Federal Circuit Courts began to overturn USCIS policy decisions in the field of EB-1 because of the USCIS’s imposition of evidentiary requirements beyond the requirements written into the law by Congress. As a result, the USCIS has issued new guidance to its officers in the field, which the agency hopes will bring its determinations of EB-1 petitions into closer compliance with the holdings of the Federal Circuit Courts of Appeal.

The new changes in the way that the USCIS decides EB-1 petitions will affect all applications filed under EB-1. This includes aliens of extraordinary who have risen to the very top of their field of endeavor, whether it is science, art or athletics. The new policy guidance will also affect outstanding professors and researchers who are recognized internationally for their eminence and distinction. Finally, the new rules will affect EB-1 petitions filed for aliens who will substantially benefit the United States because of their exceptional ability in the sciences, arts or business. (the category typically used for multi-national business executives)

On March 4, 2010, the U.S. Court of Appeals for the Ninth Circuit indicated displeasure in the manner that the USCIS had been adjudicating EB-1 cases. Specifically, the court in Kazarian v. USCIS, 596 F.3d 1115,C.A.9 (Cal.), March 04, 2010 found that the USCIS had added evidentiary requirements over and above what Congress had written into the federal regulations concerning EB-1 petitions. For purposes of establishing the context of this decision, the USCIS is given leeway to interpret and enforce federal regulations as many federal regulations are not specific in how they should be applied. However, the USCIS is not permitted to change the substance of the law in a way that contradicts or adds new requirements to the federal regulations because federal regulations handed down by Congress trump the rules of Federal Agencies who are entrusted to enforce these laws.

Each type of EB-1 visa requires that the Petitioner show that he or she has achieved notoriety in various ways. In regards to EB-1-2 petitions for professors and researchers, Congress has decided that the petitioner must establish a level of notoriety in two of six available categories of evidence in order to prove that the petitioner stands apart in the academic community through eminence and distinction. The subject of the case noted above, Mr. Kazarian, a professor, made an argument in his petitions that he (a) had participated as a judge of the work of others and (b) had authored scholarly articles in the field, published in major professional, trade publications or other major media. The USCIS was dismissive of the evidence given in these two evidentiary categories, essentially holding that the panel that Mr. Kazarian judged on was within his own university and not important. Additionally, the USCIS held that the scholarly articles that Mr. Kazarian had written did not garner enough reaction or attention from the academic community, and were not internationally recognized. The ninth circuit took issue with the USCIS’s reasoning, holding that “Nothing in that provision suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with” and that “Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence…” Essentially, the court held that the USCIS had added additional substantive requirements to the law in dismissing this evidence at the outset, essentially crippling Mr. Kazarian’s case before the entirety of the petition could be analyzed for proof of international recognition.

The holding in Kazarian has prompted the USCIS to reevaluate its approach to adjudication of EB-1 cases in all categories. The USCIS has now adopted at two-prong method of adjudication in EB-1 cases. First, the adjudicating officer is to examine the evidence submitted to meet each individual evidentiary prong in the visa petition, scanning only to make sure that the evidence is legitimate, relevant, fits with the category and is credible. If the evidence submitted for that prong meets this initial review, it is counted toward meeting that evidentiary prong.

As an example, as stated in the federal regulations, one of the six evidentiary prongs of evidence that will prove that a professor or researcher is outstanding is “Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members.” Being named to an executive position in a research organization as a result of the alien’s accomplishments and expertise in research within the University that the alien works for will probably be counted toward this evidentiary prong, provided that the evidence submitted is legitimate and credible. Aside from initial observations of whether the evidence submitted fits the category to be proven, the adjudicating officer is to count the prong as completed and move on to the next prong.

The second prong of adjudication comes into play at the end of the adjudicator’s analysis. Specifically, the officer is to make “a final merits determination” to decide if the evidence provided as a whole meets the high standards of the visa category. For outstanding researchers that standard that needs to be met is “recognized internationally as outstanding in a specific academic area” In the example above, the adjudicating officer would take into account whether or not the minimum number of prongs had been met, then judge the entirety of the evidence against the “internationally recognized as outstanding” standard. These evidentiary standards must be met by a more-likely than not or more than 50% likely) preponderance of the evidence) standard. If the evidence shows that the necessary amount of evidentiary prongs are met, and that the outstanding nature of the alien has been proven by the evidence as a whole, than the visa should be issued as requested.

Going back to the example above, while executive appointment in a University research committee may be probative and relevant for initially proving the category, the adjudicating officer would then re-examine the evidence of committee membership at the University level to see if such a position was indicative of international recognition. In this example, such a University level position would not carry as much weight, in most instances, as selection to international organizations such as Sigma Xi when analyzing the evidence as a whole.

The alteration of the way in which the USCIS adjudicates EB-1 petitions proposes some interesting new possibilities for argument of EB-1 cases. The Law Firm of Shihab & Associates keeps vigilant watch of new developments in the EB-1 visa category that can be used to the advantage of our clients. If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.