Administrative Appeals Office (AAO) non-precedent decision approving EB-1 green card for a researcher applying Kazarian two-step test.
The Director of the USCIS Texas Service Center, denied the employment-based immigrant visa petition in EB-1 category. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.
The petitioner is a professor and researcher who primarily studies avian brood parasites, i.e., birds that lay their eggs in the nests of other bird species. The petitioner seeks classification as an alien of extraordinary ability (EB-1) pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(1)(A). ...
While this appeal was pending, the U.S. Court of Appeals for the Ninth Circuit issued a decision concluding that USCIS should reserve any evaluation of the record evidence that otherwise meets the plain language requirements of the regulatory criteria for a separate and subsequent "final merits determination." Kazarian v. USCIS, 596 F.3d 1115, 1121-22 (9th Cir. 2010).
The two-step review articulated in Kazarian provides a reasonable interpretation and application of the existing regulatory standard. To promote consistency, USCIS has adopted this two-step review process for cases arising both within and outside the jurisdiction of the Ninth Circuit. Thus, the proper procedure for evaluating an extraordinary ability visa petition is twofold. First, we will analyze the record and count the number of evidentiary criteria met, without imposing novel substantive or evidentiary requirements beyond those set forth by regulation. Second, if the petitioner submits evidence that meets at least three of the criteria, we will then review the record in its totality in a final merits determination to determine if the alien is one of that small percentage of individuals who have risen to the very top of their field, has sustained national or international acclaim, and that his or her achievements have been recognized by others in the field of expertise.
At the second step, we consider not only the quantum of evidence, but also its quality (including relevance, probative value, and credibility). See Matter of Chawathe, 25 I&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 1989)). If the record establishes that it is more likely than not that the individual has sustained national or international acclaim and recognition in the field of expertise, and is one of that small percentage who has risen to the very top of their field ofendeavor, the petitioner has met his or her burden of proof. ...
[T]he petitioner has established eligibility for the benefit sought under section 203(b )(1 )(A) of the Act. ...
The decision of the director is withdrawn. The petition is approved." Read the full text of the AAO non-precedent decision here.
The Director of the USCIS Texas Service Center, denied the employment-based immigrant visa petition in EB-1 category. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.
The petitioner is a professor and researcher who primarily studies avian brood parasites, i.e., birds that lay their eggs in the nests of other bird species. The petitioner seeks classification as an alien of extraordinary ability (EB-1) pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(1)(A). ...
While this appeal was pending, the U.S. Court of Appeals for the Ninth Circuit issued a decision concluding that USCIS should reserve any evaluation of the record evidence that otherwise meets the plain language requirements of the regulatory criteria for a separate and subsequent "final merits determination." Kazarian v. USCIS, 596 F.3d 1115, 1121-22 (9th Cir. 2010).
The two-step review articulated in Kazarian provides a reasonable interpretation and application of the existing regulatory standard. To promote consistency, USCIS has adopted this two-step review process for cases arising both within and outside the jurisdiction of the Ninth Circuit. Thus, the proper procedure for evaluating an extraordinary ability visa petition is twofold. First, we will analyze the record and count the number of evidentiary criteria met, without imposing novel substantive or evidentiary requirements beyond those set forth by regulation. Second, if the petitioner submits evidence that meets at least three of the criteria, we will then review the record in its totality in a final merits determination to determine if the alien is one of that small percentage of individuals who have risen to the very top of their field, has sustained national or international acclaim, and that his or her achievements have been recognized by others in the field of expertise.
At the second step, we consider not only the quantum of evidence, but also its quality (including relevance, probative value, and credibility). See Matter of Chawathe, 25 I&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 1989)). If the record establishes that it is more likely than not that the individual has sustained national or international acclaim and recognition in the field of expertise, and is one of that small percentage who has risen to the very top of their field ofendeavor, the petitioner has met his or her burden of proof. ...
[T]he petitioner has established eligibility for the benefit sought under section 203(b )(1 )(A) of the Act. ...
The decision of the director is withdrawn. The petition is approved." Read the full text of the AAO non-precedent decision here.
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