As layoffs continue throughout the tech industry and other parts of the U.S. economy, many foreign workers who have lost their employment have also been faced with significant immigration issues. The immediate issue for many such workers is the potential loss of underlying or temporary status. For example, a laid-off worker in H-1B status only gets a limited 60-day grace period during which a terminated employee can remain in the U.S. and try to find a new employer sponsor. However, another pressing issue for many foreign workers is sponsorship for U.S. permanent residency, or a green card, which is often also tied to an employer sponsor.
The Immigration and Nationality Act (INA), however, provides two paths to a green card that can be pursued independently of employer sponsorship, specifically EB-1A extraordinary ability classification (INA § 203(b)(1)(A)) and the EB-2 national interest waiver (INA § 203(b)(2)(B)). Although the legal standards for these classifications are different, both allow a foreign worker the flexibility to self-sponsor for permanent status if they can meet the high evidentiary standards for these categories via extensive documentation. This can provide a greater sense of security in an unstable market, as well as more freedom to voluntarily change employment. The EB-1A category also offers the added benefit of a drastically shorter wait time for a green card for individuals emigrating from severely backlogged countries (i.e., India and China).
Considering these benefits, there has been an increasing level of interest in the EB-1A extraordinary ability classification in particular. However, practitioners and potential applicants should be mindful of several challenges that can arise when seeking permanent residence on the basis of extraordinary ability.
One issue is the incredibly high standard for the EB-1A, which is reserved for individuals who can establish that their achievements in their chosen field have generated sustained national or international acclaim and demonstrate that their achievements have been recognized in the field. The evidence must also establish that the individual is "one of that small percentage who have risen to the top of the field of endeavor." The governing regulations provide that extraordinary ability can be demonstrated by presenting evidence of a major, one-time achievement (i.e., a Nobel prize or Turing award) or through documentation that meets at least three of ten enumerated criteria, such as a record of publication, academic service, high pay, or original contributions of major significance in the field.
Another issue is the standard by which the United States Citizenship and Immigration Service (USCIS) adjudicates EB-1A petitions, known by practitioners as the "Kazarian" standard. The standard takes its name from an EB-1A petition filed in December 2003 by Poghos Kazarian, PhD, a theoretical physicist whose petition was denied by USCIS. Dr. Kazarian pursued an appeal of this denial all the way to the Ninth Circuit Court of Appeals, and although his circuit appeal was also unsuccessful, the resulting decision, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), has had a significant and lasting effect on EB-1 practice.
In its decision upholding the denial of Dr. Kazarian's petition, the Ninth Circuit challenged USCIS's review of the record and suggested a two-step analytical review of evidence submitted in support of extraordinary ability petitions. At the first step, USCIS must review only whether the evidence submitted demonstrates a qualifying one-time achievement or demonstrates that three regulatory criteria have been met under the plain language of the law. If the requisite evidence has been submitted, only then may USCIS engage in a "final merits determination" to determine if the evidence establishes extraordinary ability.
After the Ninth Circuit issued its decision, USCIS issued a Policy Memorandum in December 2010 adopting Kazarian's two-part adjudicative approach. As articulated by USCIS, the standard is to first determine whether the petitioner has submitted evidence that meets the parameters provided in the regulation. Second, determine whether the evidence as a while demonstrates that the individual meets the high-level of expertise required for extraordinary ability classification during a final merits determination. The two steps must not be collapsed into one analytical step, as had occurred in Kazarian, with each type of evidence being individually assessed to determine extraordinary ability. In later policy provisions, USCIS also adopted the two-step review process for the adjudication of outstanding professor or researcher petitions and petitions for individuals of exceptional ability.
Kazarian is not new, but it has had a lasting and challenging impact on extraordinary ability, outstanding professor or researcher, and exceptional ability adjudications that continues today. Although the initial premise of the Ninth Circuit opinion, that "neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those established by regulation," was most welcome, USCIS's implementation of the decision has been viewed as problematic by many practitioners since the beginning. While the first step of the analysis is reasonably clear (i.e., someone either presents documentation that demonstrates a one-time achievement or meets three regulatory criteria, or they do not), the second step of the analysis is highly subjective on the part of the adjudicating USCIS officer. Despite some policy guidance provided by USCIS, the considerations of adjudicating officers conducting the final merits review remain unclear and officers are afforded wide discretion to determine if the "overall impression" of the evidence establishes that the individual is extraordinary. This second step of the analysis also yields a high level of requests for additional evidence (RFEs) and denials by USCIS, and the agency continues to struggle with keeping the two-steps of the analysis distinct, making the adjudications process lengthier and more complex for applicants.
There has long been a need for USCIS and the Department of Homeland Security to clarify the requirements and adjudicatory structure for extraordinary ability, outstanding professor and researcher, and exceptional ability green card petitions via regulation. Indeed, the USCIS Ombudsman has requested such action as far back as 2011. In the absence of any clarification, however, Kazarian has become the subject of litigation, with many attorneys considering challenges to the Kazarian standard on the basis of government overreach and actions that are arbitrary and capricious. However, no such litigation has been successful in eliminating or even weakening this standard. Individuals and attorneys considering pursuit of an EB-1A should be incredibly mindful of this challenging standard and prepare only strongly supported petitions with an abundance of supporting evidence.
Reprinted with permission from the June 12, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
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