by Victoria Chen, Esq., J.D.
The Department of Homeland Security (DHS) has delegated the authority to make determinations of eligibility regarding immigrant petitions filed under the Immigration and Nationality Act of 1952 (INA) in Section 203(b) and Title 8 (Aliens and Nationality) Code of Federal Regulations (CFR) Section 204.5 to the United States Citizenship and Immigration Services (USCIS). There are currently three classifications under Section 203(b), however this article will only explain the petition admission guidelines regarding “Aliens with extraordinary ability” described in 203(b)(1)(A), “Outstanding Professors and Researchers” described in 203(b)(1)(B). Based on the case of Kazarian v. USCIS, both of the classifications discussed in this article require a two-part admissions approach utilized by the Form I-140 petition adjudicator, the Immigration Service Officer (ISO). In such matters, the ISO must first evaluate the evidence on an individual basis to determine if the evidence satisfies the criteria, and then must consider all of the evidence in totality in making the final merits determination.
II. Determination of Classification
The statutory framework for the visa classification of an Alien of Extraordinary Ability under INA 203(b)(1)(A). The qualification, under this category, is reserved for only a small percentage of individuals at the top tier of each field of endeavor. The second statutory framework for the visa classification is an Outstanding Professor or Researcher under INA 203(b)(1)(B), which requires that the foreign national “be recognized internationally as outstanding in a specific academic field.” Outstanding professors or researchers must stand apart in the international community of their corresponding academic field through reputation and distinction.
III. Case Precedent – Kazarian v. USCIS
In 2010, the United States Court of Appeals for the Ninth Circuit reviewed the USCIS appellate decision regarding a petition filed under the aforementioned classifications. While the court upheld the Administrative Appeals Office (AAO)’s decision to dismiss the appeal, the court took issue with the AAO’s process of evaluating evidence submitted by the petitioner. Primarily, the court asserted that the AAO had imposed requirements beyond those specifically set forth in the regulations. With the respect to the criteria listed in Title 8 of the CFR, the court concluded that though USCIS may raise concerns about the significance of the evidence submitted to meet specific criteria, those concerns should have been raised in a subsequent, part-two stage of evaluation, deemed “final merits determination.” Therefore, the decision made by the courts in Kazarian v. USCIS set forth a two-part approach, where in the first stage, the evidence is simply counted and objectively determined, and then secondarily considered in the context of the final merits determination stage. The analysis used by the courts was based on the concept that there should be consistency in decision-making by Immigration Service Officers (ISOs), and thus a two-part approach, set forth by the Kazarian case, was warranted for Outstanding Professors or Researchers, or for Aliens of Extraordinary Ability.
IV. Standard of Proof – “Preponderance of Evidence”
The standard of proof regarding petitions filed for either Outstanding Professors or Researchers, or for Aliens of Extraordinary Ability is the “preponderance of evidence” standard. In this light, the petitioner’s evidence must be relevant, demonstrative, and credible. The evidence must also lead the USCIS to believe that the claim is “more likely than not” true, where the phrase more likely than not is determined to mean “a greater than 50 percent probability of something occurring.”
V. Procedure Overview
If the petitioner does indeed provide documentation satisfying this standard, and the documentation is legitimate (i.e. not forged, issued in error, inaccurate, etc.), then the decision set forth in the Kazarian case prohibits USCIS from imposing additional substantive or evidentiary requirements beyond those specifically outlined. Thus, Kazarian requires that the adjudicator first determine whether the petitioner has provided evidence to satisfy the prerequisite number of evidentiary prongs under the specific visa classification the beneficiary is pursuing. Then, the adjudicator must determine how many prongs the petitioner has indeed satisfied. If the documentation (e.g. articles, publications, memos, reference letters, testimonial letters, contribution letters, etc.) is relevant to the category, is substantive (it does not merely recite the statutes), and is credible, it will necessarily be sufficient under Kazarian case precedent. In other words, if the petitioner has demonstrated through documentation that the beneficiary satisfies the required number of criteria, and the documentation is in and of itself reliable and pertinent, then the evaluator must accept the evidence as satisfactory, and must continue to the second phase of evaluation. In the second phase of evaluation, the adjudicator must then weigh the evidence against the required high level of expertise necessary for the specific visa category. In this stage, the reviewer can cumulatively determine whether or not the documentary evidence qualifies the petitioner as an expert at the absolute top of his field of endeavor. It is in this stage only that the evaluator can employ substantive criteria to determine whether the petitioner passes the preponderance of evidence standard.
VI. Alien of Extraordinary Ability Procedure
In general, the petitioner must provide initial evidence that the foreign national beneficiary has sustained national or international commendation, and that the foreign national’s achievements have been recognized in their respective field of expertise. The ISO must use a two-part analysis as aforesaid to determine eligibility, first determining whether the petitioner has met at least three of the specified criteria, and then the ISO should consider all of the evidence in making the final merits determination. In part one, the ISO must determine whether the foreign national can establish “sustained national or international acclaim” through evidence of a one-time reception of a major, internationally recognized award. If the petitioner cannot provide evidence of such, the regulation lists the following criteria, of which the ISO must determine whether or not the foreign national satisfies at least three [8 CFR 204.5(h)(3)]: (1) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (3) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation; (4) Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought; (5) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; (6) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media; (7) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases; (8) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; (9) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or (10) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. If for some reason the standards do not easily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish that the beneficiary is elgible. For example, if the foreign national beneficiary was an Olympic coach or athlete, an Olympic medal or all-star election may be sufficient evidence for this auxiliary criterion. In the first stage, the limited determination implies basic analysis by the adjudicator on behalf of the evidence. The focus should be heavily focused on determining whether the documentation does indeed comply with the criteria, whether the documentation is relevant to the specific field, and whether the documentation accurately reflects the petitioner’s achievement. For example, in determining whether the documentation does indeed comply with the criteria for requiring “Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation,” the ISO must determine whether the publication indeed qualifies as a professional publication or major media publication. Furthermore, in determining whether the documentation is relevant, the ISO must determine whether or not the published material specified was related to the foreign national’s classified field. And finally, in determining whether the documentation is accurate, the ISO must determine whether or not the foreign national accurately portrayed the published material, and the publication was not merely an Associatesd work of the foreign national’s employer, or simply marketing materials created for the purpose of selling the foreign national’s products or services. There are additional specific requirements for limited determination in the first stage of analysis by the ISO for each criterion, yet they are solely definition-based requirements pertaining to each criterion. The determinations based on definitions listed in the above criteria include such terms as major significance, artistic, scholarly, and distinguished reputation. For instance, if a foreign national provides documentation in an attempt to meet the criterion requiring “Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation,” the petitioner must sufficiently prove that the organization supported by the documentation is one that would be considered “distinguished” by dictionary definition. In other words, the mere size or longevity of a corporation does not qualify it having distinguished reputation. Despite the limited determination occurring in part one of the case analysis, the burden is on the petitioner to provide appropriate and sufficient evidence for each criterion. For example, if a petitioner wishes to fulfill the criterion calling for “Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;” the petitioner must supply geographical and position-appropriate compensation surveys and organizational justifications to pay such compensation. Some sites that may be helpful for gathering this information would be: The Bureau of Labor Statistics, The Department of Labor’s Career One Stop website, and the Department of Labor’s Office of Foreign Labor Certification. Nevertheless, in the first stage of determination, the ISO is given limited power, and must make decisions on a quantifiable and tangible basis. And while the ISO must inherently consider the quality and caliber of the evidence to determine whether a criteria has been met, the decision should be objective, and the ISO should not make the determination of sustained national or international acclaim until the final merits determination in part two of the case analysis. In part two, the petitioner must surpass an additional level of determination analysis. In this stage, meeting the minimum requirement of evidence relating to at least criteria does not, in and of itself, establish that the foreign national in fact meets the requirements for classification as an Alien of Extraordinary Ability under section 203(b)(1)(A) of the INA. This stage is known as the final merits determination, and the ISO may now assess whether scholarly articles have enough merit to qualify one as an expert, and whether the foreign national’s achievements are merely pertinent to expected job responsibilities. In essence, the courts state that the foreign national’s performance at the so-called “major-league level” does not automatically establish that one has extraordinary abilities. Ultimately, in part two of the case analysis, the ISO must consider all of the evidence to make a final merits determination on whether or not the petitioner, by the preponderance of evidence standard, has demonstrated that the foreign national has: (1) A level of expertise signifying they are “one of the small percentage who have risen to the top of their field of endeavor.” [8 CFR 204.5(h)(2)] (2) “Sustained national or international acclaim” and that his or her accomplishments have been recognized in their respective field of expertise. [8 CFR 204.5(h)(3) In this case, “sustained national or international acclaim” is defined using the same dictionary rule employed above during stage one. However, there is no definitive time frame for the word sustained, thus if a beneficiary is very young, the petitioner must only prove that the beneficiary has maintained a comparable level of acclaim in the field of expertise since the individual was afforded that recognition.
VII. Outstanding Professor or Researcher Procedure
The initial stage of evaluation for a petition under the classification of Outstanding Professor or Researcher is very similar to that of an Alien of Extraordinary Ability. There are different criteria and requirements the foreign national must meet, but the process and limited analysis stipulations remain constant. Like the Alien of Extraordinary Ability admission procedure, ISOs must consider the quality and caliber of the evidence to determine whether a particular criterion has been met, however determinations relative to the alien’s claimed international recognition are made in part two of the case analysis. Specifically related to I-140 petitions for an outstanding professor or researcher, the petitioner must provide evidence that demonstrates that the foreign national is recognized internationally as outstanding in the academic field specified in the petition. However, the professor or research will only be comparatively assessed to professors or researchers in their specific field. For example, a particle physics professor will not be compared against optical physics professors in order to determine whether or not one is outstanding. In addition to the aforementioned qualifications, the petition must also be accompanied by an offer of permanent, tenured, or tenure-track employment (limited to “permanent positions” in the case of research positions) from a qualifying prospective employer (i.e. University or Accredited Institute). The offer must also be supplemented with evidence that the foreign national has had at least three years of experience in teaching or research in the specified academic field in which the foreign national will continue to be engaged. Title 8 of the CFR itemizes the six criteria the ISO will use in part one of the case analysis to determine whether or not the documentation submitted meets the preponderance of evidence standard. The evidence must also meet at least two of the following criterion:[8 CFR 204.5(i)(3)(i)]: (1)Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field; (2) Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members; (3) Published material in professional publications written by others about the alien’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation; (4) Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field; (5) Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or (6) Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field; At least two of the six previous criteria must be satisfied in order to establish international recognition as outstanding in an academic field. As mentioned above, the process in determining whether or not the evidence meets each criterion should be objective, and should be limited to analysis of whether the documentation is pertinent to the criterion and specified academic field, and whether or not the documentation accurately portrays the foreign national’s actual accomplishments. There are also cases similar to the Alien of Extraordinary Ability procedure, where the determination is definition-based, in that the documentation meets the definition listed in the criteria. For illustration, pursuant to the criterion mandating “Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field,” the ISO must evaluate not only whether the foreign national has indeed authored scholarly articles in the specified field, but also whether or not the publication indeed qualifies as a “scholarly book or journal with international circulation.” The burden of this proof is again on the petitioner, and if the journal does not clearly indicate international circulation, appropriate documentation should be included. In part two of the case analysis for the classification of Outstanding Professor or Researcher under section 203(b)(1)(B) of the INA, the final merits determination is employed. Again, in this stage, meeting the minimum requirement of at least two criteria, in and of itself, does not automatically establish that a foreign national in fact meets the requirements for classification as an Outstanding Professor or Researcher. The ISO will take all of the evidence into consideration in order to make a final merit determination of whether or not the petitioner has, by the preponderance of evidence standard, demonstrated that the foreign national an internationally recognized outstanding professor or researcher in the specified academic field. This implies that the ISO is permitted to take the evidence in totality, and consider whether or not the merits of the beneficiary are in fact internationally significant and worthy of being deemed outstanding.
Set forth by Kazarian v. USCIS, ISO’s are now required to use a two-part analysis where in the first stage the criteria are objectively assessed and counted, and in the second stage a total consideration is given to the evidence to determine whether the merits meet the final requirements for each classification. In both stages the evidence must meet the preponderance standard of proof, yet merely meeting the standard and minimum requirements established in the regulatory criteria in part one, does not necessarily qualify one as an alien of extraordinary ability or an outstanding professor or researcher under section 203(b) of the INA. Furthermore, evidence submitted must sufficiently establish that the foreign national possesses qualifications “significantly above that ordinarily encountered.” The mere possession of a degree, diploma, or certificate does not by itself provide sufficient evidence of such. All documentation provided should support claimed contributions and achievements recognizing the foreign national’s significance.
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