EB-1 Extraordinary Ability Adjudications

Thursday, July 28th, 2011

The United States Citizenship and Immigration Services (USCIS) has released statistics on Immigrant Petitions for Alien Workers (I-140) with Classification of EB-1A (“E-11) with respect to overall receipts, approvals, denials and request for evidence for fiscal years 2010 and 2011 year-to-date.

In 2010, 5,414 petitions were submitted to USCIS for their review.  Of those, 3,272 (60%) were approved and 2,142 (40%) were denied, with about 2,783 (51.4%) Requests for Further Evidence (RFEs) issued.

Thus far in 2011 through July 19th, 4,078 petitions were submitted to USCIS for their review.  Of those, 2111 (62.32% of the total 3387 adjudicated) were approved and 1,276 (37.68% of the total 3387 adjudicated) were denied, with about 1,827 (53.94% of the total adjudicated) Requests for Further Evidence (RFEs) issued.

The 2011 statistics indicate that USCIS is on track to receive more petitions in this category in comparison to 2010.  Also, the percentage of RFEs issued has increased.   Although unclear, this may be due to USCIS’ use of the “final merits analysis” in the context issuing RFEs and decisions for Extraordinary Ability petitions as reflected in USCIS Interim Policy Memo, “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” USCIS PM-603-005, at 3 (Aug. 18, 2010).  

Generally, the EB-1A (“E11″) immigrant classification applies to individuals with extraordinary ability in the sciences, arts, education, business, or athletics. The individual must demonstrate that they have sustained national or international acclaim and that their achievements have been recognized in the field of expertise, indicating that they are one of that small percentage who has risen to the very top of their field of endeavor. The individual must plan to continue to work in their area of extraordinary ability and they must substantially benefit prospectively the United States.

The regulations state that to meet the standard of “extraordinary ability” in the field, applicants must meet three out of the ten listed criteria:

Each piece of evidence and the overall final determination is analyzed from the purview of whether the individual has demonstrated extraordinary ability.

The USCIS Interim Policy Memo cites, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), as establishing a “two-part approach where the evidence is first counted and then considered in the context of a final merits determination.”  Unfortunately, the Policy Memo at note 4 on page 3 states — with no guidance — that, “[t]he ISO must first evaluate the evidence on an individual basis to determine if it meets the criteria, and then must consider all of the evidence in totality in making the final merits determination.”  The Policy Memo, like the Kazarian court, falls short in providing guidance in making the “final merits determination.”  Indeed, the Kazarian court found that the plaintiff failed to provide evidence to meet three of the ten criteria and upheld USCIS’ denial solely on that basis.  The court concluded “the applicant has failed to satisfy the regulatory requirement of three types of evidence.”  Kazarian at 1122.  The court never reached the issue of how the second step in the analysis should be conducted.  Thus to rely on it as providing the proper approach where no such analysis or guidance was articulated is improper; it invites arbitrary and capricious results to simply leave it open-ended by relying on a case that never addressed the matter factually. 

Whether or not USCIS’ use of the “final merits analysis” is the reason for the decrease in the percentage of approvals thus far in 2011 is yet to be determined.  Nonetheless, to ensure predictive standards for applicants and confidence in adjudications, USCIS need only look to the analysis articulated by Buletini to provide an approach that will best achieve the goals of consistency and transparency.  As such, USCIS should take the more articulated Buletini approach followed by federal courts since its annunciation which stated: “Once it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. §204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard.”  See Buletini v. INS, 860 F. Supp. 1222, 1234 (E.D. Mich. 1994).  This approach preserves and supports the clear regulatory language of what evidence is required for a prima facie approvable petition and it avoids the catch-22 of the Kazarian “final merits analysis” proclamation which merely says that if the evidence has been provided in accordance with the regulatory standard of extraordinary ability, determine if the regulatory standard of “extraordinary ability” has been met.

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