In a March 4, 2010 decision, the Ninth Circuit Court of Appeals found that U.S. Citizenship and Immigration Services (USCIS) relied “on an improper understanding” of the regulatory requirements in denying an EB-1 petition for a worker of extraordinary ability, and that USCIS may not “unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5.”
The USCIS California Service Center had denied the EB-1 petition of a theoretical physicist (Dr. Poghos Kazarian), for failure to submit the required evidence for that category. To qualify as an employment-based first preference (EB-1) worker of extraordinary ability under 8 CFR 204.5, an alien must either show “evidence of a one-time achievement” such as the Nobel prize, or, alternatively, show evidence in at least 3 of 10 other evidentiary categories established by the regulations.
Kazarian appealed the denial to the USCIS Administrative Appeals Office (AAO), which upheld the Service Center’s decision. Kazarian filed suit in Federal District Court, but that court also sided with USCIS. Kazarian then appealed to the Ninth Circuit court of appeals. NAFSA signed on to an amicus brief developed by the Legal Action Center (LAC) of the American Immigration Council in support of rehearing the case. The Wolfsdorf Immigration Law Group represented Kazarian pro bono in the rehearing petition.
Although ultimately agreeing that Kazarian did not establish extraordinary ability, the court found fault with how USCIS had interpreted and applied the regulatory requirements. First, the court described the mechanics of the extraordinary ability regulation, by separating:
- The question of whether at least three of the ten categories of evidence described at 8 CFR 204.5(h)(3) were submitted; and
- The question of 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). “
Of most note is how the court addressed USCIS’s demand that the petitioner present specific types of evidence not listed in the regulations, in order to consider the evidence submitted as one of the types listed at 8 CFR 204.5(h)(3). In particular:
- Karzarian had submitted evidence of “authorship of scholarly articles in the field,” as evidence under 8 CFR 204.5(h)(3)(vi), but USCIS asserted that they would not consider this as evidence under that category, unless it was also accompanied by evidence that other scholars had cited to those publications.
- The appeals court found, however, that “Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5. Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). While other authors’ citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence. 8 C.F.R. § 204.5(h)(3). “If the agency intended to impose [peer citations] as a threshold requirement, we have little doubt that such records would have been included among the detailed substantive and evidentiary requirements set forth at 8 C.F.R. § 204.5[(h)(3)(i)-(x)].” Love Korean Church, 549 F.3d at 758.”
- Kazarian had submitted evidence of “participation as a judge of the work of others,” as evidence under 8 CFR 204.5(h)(3)(iv), in the form of proof that he judged graduate-level diploma works at Yerevan State University, where Kazarian had also taught previously. USCIS asserted that they would not consider this as evidence under that category, because it did not establish that he was an “external dissertation reviewer for a university with which he is not otherwise affiliated.”
- The appeals court found, however, that “Nothing in that provision suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with. Again, while the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement. Love Korean Church, 549 F.3d at 758.”