With all the focus on the issue of whether legalization for unskilled, unauthorized immigrants is alive or dead in the GOP House of Tea Party Representatives, we should not lose sight of the war which the Obama administration and its proxy, USCIS, are carrying out against the most highly skilled immigrants of all, namely those with extraordinary ability in the arts, science, education, business or athletics who seek permanent residence in the US through the EB-1 category.

Anyone who has been involved with an EB-1 case knows how difficult and complicated it can be to convince USCIS examiners, not to mention the AAO (Administrative Appeals Office), that a given EB-1 applicant has met the standards for showing extraordinary ability. A 2011 article by Attorney Jan Pederson states that the approval rates were only 62 per cent between 2007 and 2010.

See USCIS releases I-140 Approval/Denial Statistics for EB-1 cases, April 18, 2011.

But what happens when someone has already been approved for this difficult category and suddenly finds that USCIS intends to revoke the approval, with no coherent explanation of why the case was selected for reopening and possible revocation?

Pederson writes:

"Worse yet, USCIS is reopening even approved EB-1 cases and either revoking the approvals or issuing Notices of Intent to Revoke under the
Kazarian[Matter of Kazarian, 580 F.3rd 1030 (9th Circuit, March 4, 2010)] case law."

As explained in more detail in my next post, the Kazarian decision, whose main purpose was to condemn USCIS for making up its own EB-1 requirements that were not in the law or regulations, has provided overzealous USCIS officers with a pretext, albeit a thin one, for reopening already approved extraordinary ability petitions and in some cases revoking them.

But what happens when, as is the case with one of my recent clients, someone who has already been approved for EB-1 extraordinary ability classification receives a Notice of Intent to Revoke (NOIR) for the petition which, on its face, shows that the NOIR was not based on the Kazarian decision and has nothing to do with that decision at all?

If USCIS is now abandoning even the Kazarian pretext for reopening approved EB-1 cases, it is in effect claiming the right to reopen them for no reason at all. In that case, who can be safe from having his or her approved extraordinary ability petition reopened and revoked at any time?

And what else would be next? Would USCIS start reopening and revoking green cards that were based on approved but later reopened EB-1 petitions? How about US citizenship through naturalization based on this type of permanent residence?

Could even citizenship also be revoked without good cause based solely on a USCIS officers whim?

If USCIS has the unlimited, arbitrary, right to reopen previously approved EB-1 petitions for no reason, what is there to stop it from doing the same with other types of immigrant petitions, or for that matter, non-immigrant petitions as well?

This would inject a huge element of uncertainly into the entire legal immigration system that might make it completely unworkable.

To quote from another one of my favorite Latin poets, Ovid (43 BC - 17 AD) writes:

sic erat instabilis tellus, innabilis unda

("No one could walk on the land or swim in the sea.")

Is America's entire legal immigration system in danger of becoming as unstable and unnavigable as the land and sea in Ovid's great epic poem (Metamorphoses, Book 1: 17)?

In an upcoming post, I will examine the Kazarian decision in greater depth. as well as the rationale (if any) for using it as an excuse to reopen already approved EB-1 decisions, and show why even this flimsy excuse does not apply in my client's EB-1 case.

I will also look at the grounds for reopening approved petitions as stated in the INA and Code of Federal Regulations, and show that there is nothing in the statute for regulations that justifies the arbitrary reopening and issuance of an NOIR is a case similar to the EB-1 case involving my client - a case, which in all likelihood is not an isolated one, but may be typical of many other similar arbitrary and unjustified USCIS actions.