Two-Part Approach (the Kazarian case) for EB1-A (Alien of Extraordinary Ability) petition

  1. Introduction
    A USCIS memorandum issued in August 2010 now mandates two-step analysis for EB1-A Aliens of Extraordinary Ability and EB1-B Outstanding Professors and Researchers and EB-2 Foreign Nationals of Exceptional Ability
  2. Two Parts Approach
    The interim guidance states that USCIS adjudicators should evaluate EB1-A, B and EB-2 petitions in a two-part approach.

Part 1: Caculating prongs satisfied

The adjudicator must determine whether a beneficiary has submitted evidence to meet the criteria for the immigration classification he or she is seeking as required by the USCIS rules.

Take EB1-A as an Example: A petition for an EB1-A extraordinary ability alien, for example, must include evidence of receipt of a major internationally recognized award, such as a Nobel Prize, or at least three types of evidence from among the 10 types listed in the rules. In determining whether the applicant has received a major award (quite unusual) or have achieved at least three listed types of evidence, adjudicators look at evidence provided to determine how many evidentiary prongs have been satisfied. After deciding at least three evidentiary prongs or on major evidentiary prong has been satisfied, the adjudicator can proceed to the second step.

Part 2: Totality test

The adjudicator must consider all of the submitted evidence in totality to make a determination as to whether the foreign national meets the requisite level of expertise for the category. In this phase, the adjudicator evaluates all the evidence and determine if, cumulatively, it proves by a preponderance of the evidence that the I-140 beneficiary satisfies the general definition of the category.

Take EB1-A as an Example: For example, an adjudicator for EB1-A case has to determine, in totality, whether the applicant is at the very top of his or her field of endeavor. In making this determination, the quality of the evidence, such as whether the judging responsibilities were internal and whether the scholarly articles (if pertinent to the occupation) are cited, is an appropriate consideration in the final merits determination.