LPY Law Group Wins New EB-1A Appeal: AAO Applies Two-Part Kazarian Analysis

On August 24, 2010, the Administrative Appeals Office (AAO) sustained an appeal filed by LPY Law Group and approved the EB-1A I-140 petition that was originally denied by the USCIS Texas Service Center. Notably, this is the first sustained appeal that we are aware of where the AAO applied the two-step Kazarian analysis in making its decisions. We will address this in more detail below.

The EB-1A Petition and Decision

As background, the EB-1A I-140 petition was originally filed with USCIS in August 2009. The petitioner/beneficiary was a pharmacology researcher seeking classification of immigrant worker as an alien of extraordinary ability under INA §203(b)(1)(A). To support the petition, the petitioner/beneficiary submitted documentary evidence demonstrating that he met at least three criteria as required by 8 C.F.R. § 204.5(h)(3). The EB-1A I-140 petition was filed with Form I-907 Request for Premium Processing Service. The USCIS Texas Service Center Premium Processing Unit issued a Request for Evidence within 15 days of the filing, seeking additional information about all three criteria and referenced information not claimed nor mentioned in the original petition. It was clear that the USCIS had issued a boilerplate RFE and did not closely review the evidence submitted. (From our experience, such RFEs have been the trend for Premium Processing EB-1As). A timely response was submitted with additional evidence to support all three criteria: 1) participation as a judge of the work of others; 2) original contributions of major significance; and 3) authorship of scholarly publications.

In October 2009, USCIS denied the EB-1A I-140 petition, finding that the petitioner/beneficiary met the two criteria of participation as a judge of the work others (well established by petitioner/beneficiary's service as an editorial board member of an international journal and frequent requests by highly-regarded international journals to serve as a peer-reviewer) and authorship of scholarly publications (supported by at least 19 peer-reviewed publications and more than 200 citations), but that the petitioner/beneficiary failed to establish the third criterion of original contributions of major significance. In its decision, USCIS wrote only three general sentences to dismiss the petitioner/beneficiary's claim of original contributions of major significance, largely ignoring detailed facts in the letters of recommendation from independent experts and the objective record of evidence, including hundreds of independent citations to petitioner/beneficiary's work. With no legal reasoning or analysis of the case in its decision, USCIS denied the EB-1A petition by concluding the petitioner/beneficiary failed to establish sustained national or international acclaim and that he was among the small percentage of top researchers in his field.

The Appeal

After reviewing the USCIS decision, we found that it contained both mistakes of law and mistakes of fact, and we advised petitioner/beneficiary to file an appeal to the AAO. On appeal, we pointed out that the USCIS decision failed to consider the independent advisory opinions from international recommenders that clearly explained how the petitioner/beneficiary's original scientific contributions have directly influenced not only the field in general but also the recommenders in particular. A number of recommenders clearly stated in detail that they have cited or used the petitioner/beneficiary's work or known of other research groups that have used the petitioner/beneficiary's work in their own research. This served as direct evidence of the petitioner/beneficiary's international influence and original contributions of major significance, which the USCIS had disregarded. Likewise, we pointed out that the experts' statements were supported by tremendous material facts and evidence in the record, such as a high citation rate from independent researchers worldwide. Consistent with prior AAO decisions, a good number of independent citations is probative evidence of original contributions of major significance. Finally, we pointed out that establishing sustained national or international acclaim and status as a top researcher in the field should be based on the overall record and not one criterion, which is consistent with the approach laid out in Kazarian.

Original Contributions of Major Significance

Oftentimes for research scientists, one of the most difficult criteria to establish is "original contributions of major significance." It is not enough that research be original because all scientific research is expected to be original in order to be published. Rather, the petitioner/beneficiary must show that the original research is of "major significance," having already impacted or influenced the field of research. In our decision, the AAO reiterated its line of reasoning that letters from independent experts evaluating the petitioner/beneficiary's original contributions of major significance in detail and a record of highly cited work are important evidence to support this criterion. In particular, as discussed in the AAO decision, great emphasis is placed on letters of recommendation from independent experts that contain specific details and technical facts that are corroborated by objective, substantive evidence. A letter that generally states a researcher is extraordinary without the technical facts to back the claim is not helpful. Likewise, a letter that exaggerates the significance of a researcher's contributions will not be helpful if objective evidence (e.g., publications, high citations, media reports, etc.) is not available to support the statements. As we have explained to many clients, the USCIS gives most evidentiary weight to letters of recommendation from independent experts who have cited, used, or been influenced by the petitioner/beneficiary's research findings. These recommenders can clearly explain in their letters the major significance of an original contribution from a personal point of view. Such letters are invaluable for EB-1A petitions and were key to the successful appeal and approval of this particular EB-1A petition.

In our case, the AAO found the record contained evidence of "letters from various research scientists stating that the petitioner's original scientific contributions are of major significance in the field and providing specific examples of those contributions and how they have already significantly contributed in the field." After highlighting several of the letters of recommendation, the AAO found that "the preceding experts have not merely reiterated the regulatory language of this criterion, they have clearly described how the petitioner's scientific contributions are original and of major significance in the field. Several of the experts have explained how they currently use the petitioner's findings in their own work." The AAO further found the statements in the letters were well supported by independent citations that are "solid evidence that other researchers have been influenced by [the petitioner's] work." Based on these findings, the AAO held that the petitioner/beneficiary meets the criterion of original contributions of major significance.

Sustained National or International Acclaim and Small Percentage of Top Researchers

After finding that the petitioner/beneficiary now has established three criteria in support of his EB-1A petition, the AAO went on to conduct a "final merits determination" to consider all the evidence in the context of whether the petitioner/beneficiary has demonstrated: 1) a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor;" and 2) "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." Both factors are required under the regulations for EB- 1A classification.

In its final merits determination, the AAO found that the petitioner/beneficiary has demonstrated a "career of acclaimed work in the field." The AAO considered the petitioner/beneficiary's 19 published articles that are well cited more than 200 times. Furthermore, the AAO determined that the citation record is also consistent with original contributions of major significance as discussed in the letters of recommendation detailing the influence of the petitioner/beneficiary's contributions, which together supports national or international acclaim. Together with the petitioner/beneficiary's service as a peer-reviewer and judge of the work of others, the AAO found that "the petitioner's achievements are commensurate with sustained national or international acclaim at the very top of his field." Accordingly, the AAO sustained our appeal and approved the case.

Two-Step Kazarian Analysis

In its decisions, the AAO employed a new two-part approach following the U.S. Court of Appeals for the Ninth Circuit's ruling in Kazarian v. USCIS. In that case, the Ninth Circuit found that the AAO's traditional one-step approach, where each criterion was analyzed individually to evaluate whether it supported EB-1A, imposed a unilateral evidentiary requirement beyond the scope of the regulations. Following the approach outlined in Kazarian, the AAO now adopts a two-part approach: 1) The type of evidence is counted first, and if evidence for at least 3 criteria are submitted, then 2) The AAO performs a "final merits determination" to evaluate the significance of the evidence and to determine if as a whole the evidence would demonstrate that the petitioner/beneficiary qualifies for classification as an alien with extraordinary ability based on a level of expertise that indicates he is at the top of his field and that his achievements have garnered sustained national or international acclaim.

Following Kazarian, the USCIS recently issued an Interim Draft Memo adopting the same two-step analysis for all EB-1A Alien of Extraordinary Ability, EB-1B Outstanding Professor/Researcher, and EB-2 Alien with Exceptional Ability petitions. Many clients have contacted our firm expressing concerns that the draft memo increases the standards for EB-1A or EB-1B. We would like to reiterate that the USCIS is NOT imposing any additional standards. The very crux of the Kazarian decision clearly states that USCIS has no authority to unilaterally impose additional standards. They must make their decisions based on the standards delineated under the Immigrant and Nationality Act and the Code of Federal Regulations. Neither the law nor the regulations have changed with respect to EB-1A or EB-1B. The only difference is how the USCIS approaches the relevant legal analysis.

Although the two-step approach is considered "new," in actuality the USCIS and AAO's analysis remains unchanged. The only difference is now some of the traditional analysis has been moved from part one to the final merits determination in part two. Those who are familiar with past AAO decisions may find that certain legal reasoning and language formerly included in the analysis of separate criteria are now moved to the section on final merits determination. For example, in prior decisions, if a petitioner/beneficiary submits evidence that she/he has served as a peer-reviewer three times, the USCIS or the AAO would have stated that the petitioner/beneficiary does not meet the criterion of judge of the work of others because three reviews would be considered as part of normal job duties and not evidence of extraordinary abilities. Now, under the two-part approach set forth in Kazarian, in part one, the USCIS or AAO would find that the petitioner/beneficiary has submitted evidence of judge of the work of others, but in part two the final merits determination, the USCIS or AAO would find that only three requests for peer-review is not convincing evidence of sustained national or international acclaim or someone who has risen to the top of the field. Thus, the common reasons for denial in prior petitions originally found in sections related to individual criteria would now be moved to the final merits determination section. Although the format of the decisions may have changed, the standards for proving extraordinary ability or outstanding professor/researcher status remain unchanged.

We also note that our firm has always employed a two-part analysis for our EB-1A and EB-1B evaluations even before Kazarian. When reviewing a potential client's credentials during the evaluation process, our attorneys always count the possible criteria first and then analyze whether the evidence in support of that criteria would support a claim of extraordinary ability or outstanding researcher. As we have already done this for our cases in the past years, we do not foresee any substantial changes in the processing of EB-1A and EB-1B petitions based on the two-part Kazarian approach or USCIS Interim Memo.

* Click Here to read the AAO Decision.