EB-1 Evidence: Bar Raised

As if Extraordinary Ability wasn’t hard enough! Even more extraordinariness now required for EB-1!

Recent federal court decision from Seattle shows how EB-1 is becoming even more difficult in light of the the new two-part analysis from Kazarian now codified into standard USCIS operating procedure. Even with a good showing of three out of the ten evidentiary criteria, USCIS is going to perform something called a “merits analysis” where they are going do do a “holistic determination” about the evidence “taken as a whole” to determine whether you, as the petitioner, have achieved sustained national or international acclaim OR are within the small percentage at the very top of your field. And if USCIS can show that it considered “all the relevant factors” and articulated “a rational connection” between the facts and the decision it made to deny the petition, federal court review will NOT fix the problem because the federal court can only rule, deferring to USCIS, as to whether in denying the final merits part of the case, the agency’s decision “was arbitrary and capricious.” This means that the federal court will NOT go in and second-guess USCIS and will not review and assess the conclusions of USCIS regarding Part II.

CASE TIP:   The court WILL evaluate how well USCIS has judged whether the evidence fits into its ten criteria, but not Part II of the analysis. In filing this type of case, once you have decided that your evidence is sufficient to meet at least three criteria, focus on Part II of the case. We recommend a clear labeling and a well outlined presentation of BOTH parts of an EB-1case, with a focus on every single word needed to prove Part II – “sustained”; “national or international acclaim” with as much information to show how you are at the “very top of your field”.

Article categories: NIW/EB-1/Outstanding Researchers and Professors

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