This article assumes that you have read my prior blog entries, and know the basic EB1 Green Card requirements and terms.
On August 18, 2010, the USCIS issued a Policy Memo that permits the application of a very stringent standard to EB1 cases (EB1A Extraordinary Alien and EB1B Outstanding Researcher cases). The Memo was issued in response to the case Kazarian vs. USCIS of the US 9th Circuit Court of Appeals that has now become infamous.
Known as the Kazarian Memo (Kazarian was the EB1 foreign applicant), it created a two-part test for proving EB1 cases. The two parts are the following:
(1) Show that you qualify for at least 3 of the EB1 criteria, 2 for outstanding researcher.
(2) then prove the ‘final merits determination’ test.
Post-Kazarian, there is an explicit burden of proving “sustained national or international acclaim” and “achievements that have been recognized in the field of expertise.” In practice, this has resulted in unfair and numerous denials of meritorious cases and lengthy, unreasonable Requests for Evidence after filing an EB1 case.
The actual decision from Kazarian favored a more reasonable adjudication of EB1s, and reprimanded USCIS Adjudicating officers who abuse their discretion by inventing new standards. But, the subsequent Memo did precisely that – created an artificial evidentiary set up. The memo allows officers to erroneously raise the bar higher on EB1s. Certainly, a policy correction will have to happen in the near future.
In the meantime, we have had the opportunity to experience the harshness of the Kazarian Memo and learn how to prepare Airtight EB1s.
I talk with clients everyday, especially scientists, who are naturally very cautious about whether to even attempt an EB1 now that USCIS has taken this approach. I also counsel clients very early in the process to gather the best type of evidence because the stakes are much higher now and the outcome not as certain. Some researchers must pursue an EB1 because of EB2 visa backlogs – which affect individuals from India, Mexico, the Philippines or China.
Here are some successful methodologies given the Kazarian Memo:
(1) Save time and expense by finding an Attorney who is experienced and truthful. An EB1 case is not appropriate for all applicants, only the select few who can qualify. A good attorney will be able to tell a client which is the best strategy and suggest other GC avenues if EB1 would likely result in a denial.
(2) Use your time wisely. Pre-Plan your case carefully and do not prematurely file an EB1. If you are not ready to file EB1, ask an attorney how to gather the best EB1 evidence, even early on in the U.S.
(3) Find Testimonial Writers who are Objective and located Globally, or people you have not worked with before. The best ones are those who know of your reputation in the field, i.e. who you meet in association meetings, conferences, people who cite your publications, etc.
(4) Target evidence that has a better chance of being accepted and not questioned, i.e. record of publication, reviews, citations, original innovative contributions rather than awards or membership in associations, high remuneration, media articles, etc. The latter criteria are likely to be successful if they strictly meet the very high standards and don’t raise further questions. They often result in an opening for an RFE if poorly presented. An attorney can review which evidence will work better and meet the stringent standards.
(5) Leave out Weak evidence and focus on strong evidence that shows international acclaim. In other words, do not attempt to show ‘some’ evidence for each prong. Some clients want to include everything that is remotely relevant, but for EB1, this is a bad choice. Including weak evidence can result in an RFE and even a Denial.
(6) Explain your work in non-scientific/technical terms. Create a convincing link of how your work has made a global impact on the field in a major/significant way, and will continue to do so in the future. If the Officer does not understand your field or your work, there is less chance it will be approved.
(7) Connect all of the evidence up persuasively in the Final Merits Determination for the Officer, and tell him/her that the Evidence in the Aggregate proves EB1 and International Acclaim. Some officers are not adequately, so never assume the officer will make the connection on his/her own.
(8) Understand that the Kazarian decision is actually a good law, and cite to the useful points in your favor.
(9) In the Final Merits Determination, mention the Preponderance Standard of review for USCIS (which is more than 50% or more likely than not) and that this is in fact a low standard that is being met.
Reshma D. Parmar
Attorney at Law
I am an established business immigration attorney, licensed to practice immigration law nationally, with over 17 years of highly specialized experience working with scientists and researchers in a wide range of fields. I also work as of Counsel, providing consulting to law firms on EB1 and EB2 matters.
Comments, suggestions or questions are always welcome.
The statements in this blog are my observations based on my experience as an immigration attorney. I do not intend for them to serve as immigration advice to a reader to be relied upon, nor should they be understood or interpreted to form an attorney/client relationship.