Mention the name Kazarian, and immigration attorneys will likely roll their eyes or shake their head in frustration at the case of a theoretical physicist whose petition transformed the way USCIS adjudicates applications under the first preference immigrant visa category (“EB-1A”). This post checks in with Dr. Kazarian, discusses the legacy of Kazarian v. USCIS, 596 F. 3d 1115 (9th Cir. 2010), and comments on the current EB-1A adjudication policy of USCIS.
It was about 8 years ago, when we first got a call from the Director of the International Office at Caltech referring a young scientist who needed immigration assistance. We decided to take on the matter pro bono. After 8 years of filing first, a successful petition to review in the 9th Circuit Court of Appeals, Dr. Kazarian finally got his green card, via family immigration. Sigh!
“I am saddened that my name will now stand for the fact that the United States has made it even harder for the best of the best to immigrate. My battle to become a legal immigrant lasted almost 20 years. However, I am deeply grateful to Bernard Wolfsdorf and the Wolfsdorf Immigration Team that fought so hard for almost a decade to help me pursue my dream of finding the origin of space, time and matter. While Bernie and I have become close friends during this ordeal, and he and his team only came in after several lawyers messed up my case, but still I would not want any human being to go through what I have endured on my path to becoming a legal permanent resident.” – Said Dr. Poghos Kazarian.
A Quick EB-1A Primer
The EB-1A immigrant visa category is available for foreign nationals who can demonstrate extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim, whose achievements have been recognized in the field through extensive documentation, and who are coming to the United States to continue work in that field. USCIS’ implementing regulation at 8 CFR 204.5(h), published in 56 Fed. Reg. 60897 (November 29, 1991), defines ‘extraordinary ability’ as a level of expertise indicating that the individual is one of that small percentage who has risen to the very top of the field of endeavor, as demonstrated 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. The regulation provides that such evidence shall consist of either a one-time major, international award or by evidence satisfying at least three of the ten enumerated types. The regulation further provides applicants the opportunity to submit comparable evidence to establish the his/her eligibility, if it is determined that the standards described in 8 CFR 204.5(h)(3) do not readily apply to the applicant’s occupation.
As described in Buletini v. INS, 860 F.Supp. 1222, 1233 (E.D. Mich 1994), “[o]nce 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 [legacy] 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.” Prior to the Kazarian decision, an applicant who was able to sufficiently demonstrate meeting three of the ten regulatory criteria had thus “sustained national or international acclaim” and had “risen to the very top” of his/her field of endeavor, unless USCIS had put forth specific, substantiated reasons for an adverse finding. Thus, pre-Kazarian, the burden was on USCIS to disprove an applicant’s extraordinary ability if three criteria were met.
The Kazarian Decision
In Kazarian, the Ninth Circuit ruled that Dr. Kazarian only met two of the ten types of evidence set forth at 8 CFR 204.5(h)(3) and dismissed the appeal of his denied EB-1A application. It also found USCIS’ regulations at 8 CFR 204.5(h) to be more restrictive than the Buletini court did and held that:
If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates both a “level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor,” 8 C.F.R. § 204.5(h)(2), and “that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered “sustained national or international acclaim” are eligible for an “extraordinary ability” visa. 8 U.S.C. § 1153(b)(1)(A)(i).
Kazarian, 596 F.3d at 1117-18. The 9th Circuit used the term ‘final merits determination’ in the context of whether the evidence submitted demonstrates that “a petitioner is at the very top of his or her field of endeavor.” Even though its discussion regarding a ‘final merits determination’ should likely be viewed as dicta since it was not necessary to the actual result, Kazarian has since become the most famous EB-1A case. It is unlikely Ninth Circuit ever intended its dicta in the Kazarian case to modify how EB-1A petitions are adjudicated.
The Kazarian Memo
On December 22, 2010, USCIS released a Policy Memorandum providing guidance regarding the future adjudication of EB-1A petitions for consistency with the Kazarian decision (the “Kazarian Memo”), which reads:
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.
USCIS’ goal behind implementation of the Kazarian Memo was, in part, to provide “greater consistency in decisions on petitions for aliens with extraordinary ability.” Unfortunately, the exact opposite has occurred. Per the terms of the Kazarian memo, the burden is on the applicant to provide his/her extraordinary ability, in addition to meeting at least three of the enumerated regulatory criteria. Post-Kazarian, USCIS officers are now using the “final merits determination” language in Kazarian decision to impose additional evidentiary requirements and to assert subjective test not found within the regulations when adjudicating EB-1A immigrant visa petitions. USCIS’ interpretation of the Kazarian decision and implementation of the Kazarian Memo has thus left petitioners in an even more uncertain adjudication environment.
Update on Dr. Kazarian
Following the Ninth Circuit’s dismissal, Dr. Kazarian filed another EB-1A visa petition which addressed USCIS’ concerns in his previous filing and offered substantial documentation carefully detailing his eligibility under the regulatory standard articulated at 8 CFR § 204.5(h)(3). Using the new two-part analysis set forth in the Kazarian Memo, USCIS denied Dr. Kazarian’s petition in August 2011. USCIS determined, again, that Dr. Kazarian did not meet at least three of the ten enumerated criteria.
Dr. Kazarian, a theoretical physicist and astrophysicist, then appealed USCIS’ decision to the Administrative Appeals Office (“AAO”), arguing that he met at least four of the regulatory criteria, and at least one comparable evidence criteria, in excess of the minimum three total required. Dr. Kazarian provided evidence of his scientific collaboration and outreach for the Laser Interferometer Gravitational-wave Observatory (“LIGO”) project sponsored by the U.S. National Science Foundation (“USF”), which detects gravitational waves predicted by Albert Einstein’s General Theory of Relativity. Dr. Kazarian demonstrated through expert testimony how his research at the California Institute of Technology (“Caltech”) were used to enhance LIGO’s sensitivity and ability to detect gravitational waves. Dr. Kazarian submitted evidence illustrating the massive support he received from Caltech and the far-reaching influence that his research and LIGO may have on the entire field of physics, including gravitation, relativity, astrophysics, cosmology, and nuclear physics, including efforts to establish how galaxies are formed inside our universe. Dr. Kazarian further argued that the Kazarian Memo is contrary to law by disregarding the holdings of district court decisions which predated the Kazarian decision.
Nevertheless, on August 8, 2016, the AAO denied Dr. Kazarian’s appeal. Despite the evidence submitted and the fact that Dr. Kazarian works in theoretical physics, the AAO ruled that the “possibility of a future impact, even a profound one” does not satisfy the regulatory requirements that an applicant demonstrate evidence of the alien’s original scientific-related contributions of major significance in the field. The AAO found that Dr. Kazarian’s work had not impacted his field at a level consistent with the requirement of “major” significance. Accordingly, the AAO ruled that Dr. Kazarian had still only met two of the 10 criteria.
As is often the case when USCIS performs the analysis, the AAO conducted a ‘final merits determination,’ even when not required. The AAO cited Buletini, Kazarian, and Muni v INS, 890 F.Supp 440 (N.D. Ill. 1995), among others, and found that “a petitioner can submit evidence satisfying three criteria and still not meet the extraordinary ability standard provided that USCIS explains its reasoning.” The AAO ruled that Dr. Kazarian did not set himself apart from others in his field, that his judging experience was not indicative with national or international acclaim, and that his collaboration with the LIGO project was not significant enough.
On March 13, 2017, Dr. Kazarian finally received a green card, after 8 years of pro bono representation by Wolfsdorf Rosenthal LLP, based on a family-based application. He is now able to continue his important work at LIGO. We are pleased to see that such a driven, intelligent, and worthwhile theoretical physicist such as Dr. Kazarian won’t be deported and has been granted lawful permanent residency in the U.S.
Legacy of Kazarian
The legacy of Kazarian continues to this day, as USCIS remains fully committed to implementing the Kazarian Memo, despite numerous calls for change and the rigid implementation of the second phase subjective “merits determination”. At a time when our country should welcome innovators who can drive job creation and keep the U.S. economy strong, the implementation of the heightened evidentiary burden imposed by Kazarian Memo keeps our doors shut to top scientists and other extraordinary persons, and allows in only the very top.
Perhaps the most vexing issue is how to present evidence in a manner which would result in a positive ‘final merits determination,’ which seemingly requires a petitioner to meet a subjective test in the mind of the adjudicator on whether he/she has “sustained national or international acclaim” and has “risen to the very top” of his/her field of endeavor. The Nebraska Service Center indicated in November 2010 that being one of the small percentage who have risen to the top means the top 15%-20% of the field, and not the top 1%.
The Kazarian Memo states that USCIS officers may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations, but instead should evaluate the evidence to determine if it falls within the parameters of the regulations applicable to that type of evidence, by a preponderance of the evidence standard. However, in practice, the Kazarian Memo has created an arbitrary hurdle and has heightened the burden for extraordinary applicants to achieve an EB-1A approval.
Putting together an approvable EB-1A case requires extensive evidence, and the Kazarian Memo added another hurdle in a category in which even President Trump appears to support with him advancing “merit-based” immigration. These immigrants are the best of the best.
If you have any questions about the EB-1A Extraordinary Visa or want to schedule a professional consultation to discuss your EB-1A case, please contact a Wolfsdorf Rosenthal LLP attorney. WR has been successful in getting EB-1A approvals for many different types of professionals, including but not limited to tattoo artists, dog groomers, photographers, scientists, painters, and athletes.
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