[Blog]

The approach taken by USCIS in the Kazarian case was to examine each category of evidence submitted to determine if it alone established extraordinary or exceptional ability. The Ninth Circuit while upholding the decision of the USCIS, found that the process used by USCIS was incorrect. The Ninth Circuit determined that the USCIS should use a two-step process to evaluate I-140 petitions for these three categories.

In response, the USCIS has adjusted its procedures for evaluating these petitions. First, the adjudicator should determine whether the evidence submitted is consistent with one of the required categories of evidence, this includes the quality of the evidence. So for example, if part of the evidence consists of an article that the alien wrote, the adjudicator could examine the journal the article was published in to determine if it meets the basic requirement that the journal is appropriate for the category, i.e. if it's not a peer reviewed academic journal it may not qualify. During this objective evaluation the examiner also determines whether evidence has been submitted in enough categories so that the alien is eligible for the visa.

The second step requires the adjudicator to evaluate the entire submission to determine whether the evidence as a whole indicates that the alien has the type of acclaim, recognition and achievements based on his or her academic work to meet the necessary requirements. This second step appears to continue a very subjective component of EB-1 and EB-2 researcher petitions.

Although it remains to be seen how the implementation of these procedural changes will affect I-140 petitions, these changes should, if properly implemented, improve the probability of approval for a visa. It is now necessary to establish the required abilities and recognition for these visas by looking at all of the evidence presented as a whole to make the determination, rather than determining if each piece of evidence alone establishes the required qualifications.

It is important to note that although the burden appears to be lessened, whether someone qualifies is still determined on a case by case basis, and even if evidence is presented in the minimum number of categories it may not, when taken as a whole, establish the qualifications necessary for these types of visas. Therefore, we spend a significant amount of time preparing each case with these obstacles in mind.