Continued Battle over Kazarian for the “Extraordinary” and the “Outstanding”

USCIS not buying arguments from the immigration bar

On January 18, USCIS held an open meeting to discuss immigrant petitions based on extraordinary or outstanding achievements. The issue, of course, is the addition of the new USCIS “merits determination” based on the “totality of the circumstances” which USCIS claims is mandated by the 9th Circuit’s decision in Kazarian and which USCIS has now incorporated into its Policy Memorandum of December 22, 2010.  I participated in this teleconference, and regrettably must report that USCIS attorneys do not seem inclined to budge from their final “merits determination” position despite our insistence that the “merits determination ” language was, in fact, what we call mere “dicta” or a non-binding comment by the court, and not the laying down of a rule of law. What we immigration practitioners keep trying to remind USCIS is that under a previous decision, Buletini, a 1994 decision out of Michigan, the rule was established that once it is clear that the alien’s evidence is sufficient to meet the criteria in the regulations, the burden of proof shifts to USCIS to justify why they were not persuaded by the evidence. In view of the importance of keeping the best and the brightest in the U.S. it is essential that we continue to push for USCIS to correct and clarify its rules by revising its current Policy Memorandum.

Article categories: Immigration Policy and Legislative Initiatives, NIW/EB-1/Outstanding Researchers and Professors

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