1.The
Statutory and Regulatory Bases for “Extraordinary
Ability” Visas
The
preference allocation for employment-based immigrants is
established by statute. See 8 U.S.C. § 1153(b).
One such preference category is “aliens with
extraordinary ability.” 8 U.S.C. § 1153(b)(1)(A).
The statutory qualifications for aliens with extraordinary
ability are the following:
(A) Aliens with extraordinary ability
An alien is described in this subparagraph if--
(i) the alien has extraordinary ability in the sciences
arts, education, business, or athletics which has been
demonstrated by sustained national or international acclaim
and whose achievements have been recognized in the field
through extensive documentation,
(ii) the alien seeks to enter the United States to continue
work in the area of extraordinary ability, and
(iii) the alien's entry into the United States will
substantially benefit prospectively the United States.
8 U.S.C. § 1153(b)(1)(A).
The
pertinent regulation implementing this statutory category of
visas provides that “[a]n alien, or any person on
behalf of an alien,” may petition for classification as
an “alien of extraordinary ability” by filing an
I-140 visa petition. 8 C.F.R. § 204.5(h)(1). It then
defines “extraordinary ability” for purposes of
the regulation to mean “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.”
Id. at (h)(2). The next subdivision of the
regulation provides as follows:
(3) Initial evidence. A petition for an alien of
extraordinary ability must be accompanied by evidence that
the alien has sustained national or international acclaim and
that his or her achievements have been recognized in the
field of expertise. Such evidence shall include evidence of a
one-time achievement (that is, a major, international
recognized award), or at least three of the following [ten
listed achievements.]
8 C.F.R. § 204.5(h)(3).[1] There is a caveat that
“[i]f the above standards do not readily apply to the
beneficiary's occupation, the petitioner may submit
comparable evidence to establish the beneficiary's
eligibility.” Id. at (h)(4). Finally, as
pertinent here, the regulation states,
(5) No offer of employment required. Neither an offer for
employment in the United States nor a labor certification is
required for this classification; however, the petition must
be accompanied by clear evidence that the alien is coming to
the United States to continue work in the area of expertise.
Such evidence may include letter(s) from prospective
employer(s), evidence of prearranged commitments such as
contracts, or a statement from the beneficiary detailing
plans on how he or she intends to continue his or her work in
the United States.
8 C.F.R. § 204.5(h)(5).
2.The
“Kazarian Policy Memorandum”
On
December 22, 2010, USCIS issued a Policy Memorandum,
PM-602-0005.1, with the stated subject, “Evaluation of
Evidence Submitted with Certain Form I-140 Petitions;
Revisions to the Adjudicator's Field Manual
(AFM) Chapter 22.2, AFM Update AD11-14” (the
Kazarian Policy Memorandum). Filing 30-1 at
1. The stated purpose of the Kazarian Policy
Memorandum was as follows:
This Policy Memorandum (PM) provides guidance regarding the
analysis that U.S. Citizenship and Immigration Service
(USCIS) officers who adjudicate these petitions should use
when evaluating evidence submitted in support of Form I-140,
Immigrant Petition for Alien Worker, filed for:
• Aliens of Extraordinary Ability under section
203(b)(1)(A) of the Immigration and Nationality Act (INA);
• Outstanding Professors or Researchers under section
203(b)(1)(B) INA; and
• Aliens of Exceptional Ability under section 203(b)(2)
INA.
The purpose of this PM is to ensure that USCIS processes Form
I-140 petitions filed under these employment-based immigrant
classifications with a consistent standard.
Filing 30-1 at 1.
Three
paragraphs of the agency's explanation of the background
to this Policy Memorandum are particularly pertinent here:
In 2010, the U.S. Court of Appeals for the Ninth Circuit
(Ninth Circuit) reviewed the Administrative Appeals
Office's (AAO) dismissal of a petitioner's appeal of
a denial of a petition filed under 203(b)(1)(A) of the INA.
Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).
Although affirming the decision, the Ninth Circuit found that
the AAO erred in its evaluation of the initial evidence
submitted with the petition pursuant to 8 CFR 204.5(h)(3).
Specifically, the Ninth Circuit concluded that while USCIS
may have raised legitimate concerns about the significance of
the evidence submitted, those concerns should have been
raised in a subsequent “final merits
determination” of whether the petitioner has the
requisite extraordinary ability. Id. at 1122. The
Ninth Circuit further stated that the concerns were
“not relevant to the antecedent procedural question of
whether the petitioner has provided at least three types of
evidence.” Id. at 1121.
USCIS agrees with the Kazarian court's two-part
adjudicative approach to evaluating evidence submitted in
connection with petitions for aliens of extraordinary
ability: (1) Determine whether the petitioner or
self-petitioner has submitted the required evidence that
meets the parameters for each type of evidence listed at 8
CFR 204.5(h)(3); and (2) Determine whether the evidence
submitted is sufficient to demonstrate that the beneficiary
or self-petitioner meets the required high level of expertise
for the extraordinary ability immigrant classification during
a final merits determination. By contrast, the approach taken
by USCIS officers in Kazarian collapsed these two
parts and evaluated the evidence at the beginning stage of
the adjudicative process, with each type of evidence being
evaluated individually to determine whether the
self-petitioner was extraordinary.
The two-part adjudicative approach to evaluating evidence
described in Kazarian simplifies the adjudicative
process by eliminating piecemeal consideration of
extraordinary ability and shifting the analysis of overall
extraordinary ability to the end of the adjudicative process
when a determination on the entire petition is made (the
final merits determination). Therefore, under this approach,
an objective evaluation of the initial evidence listed at 8
CFR 204.5(h)(3) will continue as before; what changes is when
the determination of extraordinary ability occurs in the
adjudicative process. USCIS believes that this approach will
lead to decisions that more clearly explain how evidence was
considered, the basis for the overall determination of
eligibility (or lack thereof), and greater consistency in
decisions on petitions for aliens with extraordinary ability.
Filing 30-1 at 3.
The policy established by this Memorandum is the following:
In order to promote consistency in decision-making, USCIS
officers should use a two-part approach for evaluating
evidence submitted in support of all petitions filed for
Aliens of Extraordinary Ability, Outstanding Professors or
Researchers, and Aliens of Exceptional Ability. USCIS
officers should first objectively evaluate each type of
evidence submitted to determine if it meets the parameters
applicable to that type of evidence described in the
regulations (also referred to as “regulatory
criteria”). USCIS officers then should consider all of
the evidence in totality in making the final merits
determination regarding the required high level of expertise
for the immigrant classification.
Filing 30-1 at 4.
This Policy is then further illuminated in a part of the
Memorandum captioned “Proof”:
USCIS officers are reminded that the standard of proof for
most administrative immigration proceedings, including
petitions filed for
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