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  • Article: The Merits of the Final Merits Determination by David Hirsch

    The Merits of the Final Merits Determination

    by David Hirsch

    The Merits of the Final Merits Determination

    David Hirsch [1]

    In early 2010, business immigration practitioners celebrated the end of an era of highly restrictive U.S. Citizenship and Immigration Services (USCIS) policies. [2] They believed that a new decision, Kazarian v. U.S. Citizenship & Immigration Services, would cleanse and streamline the green card application process for their most talented clients. [3] The judgment would “ensure[] that future ‘extraordinary ability’ applicants will not encounter arbitrary hurdles” in their attempt to remain in the United States permanently. [4] Leading practitioners declared that the “victory” had “laid down the law to the USCIS.” [5]

    Only three years later, this case has become a symbol of the conflict between the government and immigration advocates over our system for attracting the best and the brightest from abroad. Many immigration scholars believe that the USCIS “uses Kazarian to apply an artificially heightened and highly discretionary standard of review.” [6] Practitioners have noted that the USCIS is denying ever-larger numbers of cases under this standard. [7] The USCIS maintains that it is using a plausible interpretation of the decision for a proper purpose. [8]

    This essay argues that the USCIS’s interpretation of Kazarian is correct, and that any reform measures must preserve its discretion. First, it provides a brief background on the EB-1-1 immigrant visa category and the 9th Circuit’s decision. Second, it critiques business practitioner’s interpretations of that decision. Third, it provides suggestions to improve the predictability and utility of the law after Kazarian.

    I. The Best and the Brightest



    A. The Statute

    The Immigration and Nationality Act (INA) underlies almost every major U.S. immigration policy. Its last major revision, the Immigration Act of 1990, created a framework for employment-based immigration that is still in place today. [9] Any prospective alien applying for permanent residence based on his or her employment falls into one of five categories based on skills, education, and support from a U.S. employer. The most talented immigrants may be eligible for the EB-1-1 category, which is reserved for “aliens of extraordinary ability.” [10]

    To qualify for this preferred category, the person or organization filing the petition must demonstrate that:

    (i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,

    (ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and

    (iii) the alien's entry into the United States will substantially benefit prospectively the United States. [11]

    This category offers important advantages to aliens. First, it allows them to immigrate without permanent labor certification, an extended and expensive search for alternative U.S. workers. This search, which is designed to “certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity,” is a major stumbling block for many aliens. Second, the EB-1-1 visa allows an alien to self-petition without an employment offer. [12] Third, the EB-1-1 category is currently the only self-petitioned category that allows for Premium Processing, which provides an initial decision on the petition within fifteen days. [13] Perhaps most importantly, the process allows aliens from India and China to adjust to permanent residence status shortly after approval. An alien from China, for example, could trim her wait for a green card from up to seven years to four months. [14]

    B. The Regulations

    The USCIS soon promulgated regulations to interpret the statute. 8 C.F.R. § 204.5(h) defines extraordinary ability as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” [15] It then lays out how a petitioner can qualify for this coveted category. The regulations require evidence demonstrating “sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” [16] This evidence may consist of either a “major, international recognized award” like a Nobel Prize or at least three of ten other types of evidence, including “[e]vidence of the alien's authorship of scholarly articles in the field” and “[e]vidence of the alien's participation . . . as a judge of the work of others.” [17] If the alien can establish that none of these categories readily apply to his work, he may submit “comparable evidence” to establish his qualifications. [18] Finally, he must demonstrate that he “seeks to enter the United States to continue work in the area of extraordinary ability” and that his presence “will substantially benefit prospectively the United States.” [19]

    Adjudicators attempting to apply these regulations quickly encountered a problematic ambiguity. They might have to approve a petition when the alien provided evidence meeting three out of ten criteria. On the other hand, the regulations could define those criteria as a mere threshold exercise, to be followed by a final determination of the petitioner’s overall ability.

    C. Early Interpretations

    Letters

    This split soon led to an exchange of public letters between James Bailey, the Director of an immigration Service Center and Lawrence Weinig, the Acting Associate Commissioner of Examinations. Bailey’s letter pointed out the two possible interpretations:

    “One school of thought is that the phrase, ‘Such evidence shall consist of’ means that if the evidence submitted meets two of the criteria listed, the alien qualifies for the classification. The other opinion is that the regulation means that at least two kinds of evidence must be submitted, but the evidence must demonstrate that the alien stands out from the regular, garden variety type of professor or researcher.” [20]

    Acting Associate Commissioner of Examinations Lawrence Weinig replied:

    “The documentation presented must establish that the alien is either an alien of extraordinary ability or an outstanding professor or researcher. If this is established by meeting three of the criteria for extraordinary aliens or two of the criteria for outstanding professors or researchers, this is sufficient to establish the caliber of the alien. There is no need for further documentation on the question of the caliber of the alien. However, please note that the examiner must evaluate the evidence presented. This is not simply a case of counting pieces of paper. [21]

    This letter was the last word on the issue until federal courts became involved.

    Buletini

    In 1994, the federal District Court for the Eastern District of Michigan provided its own interpretation of the regulations. In Buletini v. I.N.S., an Albanian physician appealed the USCIS’s decision to deny his EB-1-1 petition. The court granted his appeal, noting that the government had applied “a much higher standard of eligibility than is called for by the 1990 Amendment or the federal regulations.” [22] It overturned the government’s decisions on four separate criteria, concluding that:

    It is an abuse of discretion for an agency to deviate from the criteria of its own regulation. Once it is established that the alien's evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard. [23]

    This case did not immediately have an impact on USCIS practices, but it provided a foundation for many of the arguments against the current USCIS approach.

    New USCIS Requirements

    In order to restrict the flow of immigrants into the EB-1 category while complying with Buletini, the USCIS added additional requirements to each criterion. A physician submitting evidence that she reviewed articles for a journal would also be required to demonstrate that the journal only accepted extraordinary physicians as reviewers. [24] A researcher with published articles in peer-reviewed journals would be required to provide reports on the journals’ prestige and citation records. Practitioners repeatedly attacked these practices, arguing that this circular logic required aliens to prove that they possessed extraordinary ability to prove that they were aliens of extraordinary ability. [25] One author recently summed up the problem, “an applicant needs to meet the minimum number of criteria to be found extraordinary or outstanding, but the applicant needs to be extraordinary or outstanding to meet each criterion.” [26] This practice erected a confusing and arbitrary superstructure atop the regulations, leading to the submission of huge quantities of evidence and the issuance of illogical denials.

    D. Kazarian

    The Kazarian case began after George Verdin, a lawyer indefinitely suspended from practice before most major immigration groups [27] , filed a misguided EB-1-1 petition for Dr. Poghos Kazarian, a tutor and instructor at Glendale Community College in California. The USCIS Administrative Appeals Office denied this petition, finding that Kazarian did not meet any of the ten criteria. Its decision included much of the circular logic from earlier denials, including a requirement that Kazarian provide evidence of the “research community's reaction to” his articles and a blanket statement that review of dissertations at one’s own university did not qualify as service as “a judge of the work of others.” [28] Bernard Wolfsdorf then took the case pro bono with support from AILA and filed an appeal with a federal district court in California. The case ultimately went up on appeal to the Ninth Circuit, which heard argument in 2008. [29]

    The Ninth Circuit’s final decision was a sharp rebuke to existing USCIS practices. The court rejected the agency’s interpretation of the regulations, holding that “neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5.” [30] This effectively prevented the USCIS from requiring that each criterion demonstrate the alien’s extraordinary ability. Though the court held that Dr. Kazarian met two of the required criteria, it found that the USCIS’s error was harmless because he was one criterion short. [31]

    Many immigration practitioners saw this as a victory. They believed that the court had simplified the criteria and affirmed that meeting three of them was sufficient for approval. The decision, however, included language to the contrary. It made two references to a “final merits determination,” a possible second step in the adjudication process. The court dismissed the USCIS’s requirement that Dr. Kazarian show citations to establish that he had authored articles, but noted that “[w]hile other authors' citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence.” [32] It added that the question of whether Dr. Kazarian’s work had been cited “might be relevant to a final merits determination.” [33] The court did not actually apply the “final merits determination” because Dr. Kazarian failed the “antecedent procedural question.” [34] It thus left the meaning of the “final merits determination” to the agency.

    E. Dueling Interpretations

    The USCIS seized on this opportunity to restructure its adjudication process. On December 22, 2010, USCIS issued an updated policy memorandum displacing all previous guidance on EB-1 petition adjudication. [35] USCIS noted that it was meant to prevent “piecemeal consideration of extraordinary ability and [shift] the analysis of overall extraordinary ability to the end of the adjudication process when a final determination on the entire petition is made (the final merits determination).” [36] It created a two-step process: (1) an evaluation of whether the petitioner provided evidence meeting at least three criteria (or a major one time award); and (2) a final merits determination.

    USCIS provided little guidance on how adjudicators would make this determination. [37] It did note that adjudicators should consider the quality of evidence, such as “whether the judging responsibilities were internal and whether the scholarly articles (if inherent to the occupation) are cited by others in the field,” but was otherwise short on specifics. [38] Finally, the memorandum confirmed the principle from Buletini that the adjudicator “must articulate the specific reasons as to why the USCIS officer concludes that the petitioner . . . has not demonstrated that the [individual met the regulatory requirements].” [39]

    AILA rejected the USCIS two-step process and final merits determination. First, it submitted, the petitioner presents a body of “initial” evidence to the USCIS. Next, USCIS qualitatively evaluates this evidence, rather than merely counting it, to “determine its credibility and value, and in order to determine whether a prima facie case has been established.” If the petitioner manages to meet three of the criteria, he or she has established a prima facie case. The “burden” then shifts to the USCIS to “articulate substantiated, specific reasons why the burden of proof has not been satisfied.” If the USCIS does not provide any such reasons, it must approve the petition.

    In response, the USCIS moved to firm up and elaborate on the final merits determination. Its Administrative Appeals Office (AAO) issued a call for amicus curiae briefs on a sample appeal with the goal of issuing a precedent decision [40] clarifying the standard and final merits determination. [41] More than nine parties, including the American Immigration Lawyers’ Association, submitted briefs. The AAO stated on August 31, 2012 that it would make a recommendation to USCIS leadership on a precedent decision “in the near future,” but has not yet taken action. [42] The field is thus open to new perspectives.

    II. Legal Merits


    The final merits determination is a necessary part of the review of EB-1-1 petitions. An examination of the immigration system as a whole and Congressional intent in passing the 1990 Amendments demonstrates that the final merits determination is more desirable than existing alternatives.

    A. The Text

    AILA and certain academic commentators have asserted that the final merits determination is not a separate step in the adjudication process, but rather “an inherent component of the review of evidence.” [43] On this view, the decision mentioned the final merits determination “merely in passing.” [44]

    A straightforward reading of the decision demonstrates the error of AILA’s argument. The Ninth Circuit mentioned the determination twice. It divided the presentation of evidence into two stages, an “antecedent procedural question,” where citations were irrelevant, and a “final merits determination,” where they were relevant. [45] The use of temporal language and the division of evidence into categories relevant at different stages strongly suggest that the court intended to create a two-stage process.

    Immigration advocates respond that the final merits determination “belittles the significance of having met at least three criteria, rendering the whole purpose of meeting three criteria meaningless.” [46] This would be news to Dr. Kazarian, who did not reach the final merits determination. Another amicus brief noted that it is implausible that a regulatory scheme providing for such specific factors would allow a final merits determination “capable of setting them all aside.” The author added that it was “inconceivable” that the scheme should do so “without providing as such.” [47] Yet the regulations list the three criteria under a heading titled “initial evidence.” [48] The language requiring that “the individual is one of that small percentage who have risen to the very top of the field of endeavor” also suggests some form of additional scrutiny. [49]

    B. Subsequent Decisions

    Subsequent decisions have reinforced this reading of Kazarian. In Rijal v. U.S. Citizenship & Immigration Services, a foreign national appealed the denial of his EB1-1 petition. [50] Both parties submitted confusing briefs that did not mention the final merits determination. [51] The District Court for the Western District of Washington issued a sharp rebuke, “[b]oth Mr. Rijal and the USCIS often seem to assume that satisfying three criteria is the end of the “extraordinary ability” inquiry. They are mistaken.” [52] The court went on to examine the USCIS’s approach to the evidentiary criteria, which resembled that disapproved in Kazarian. It nonetheless affirmed because “it is apparent that [the USCIS] made those errors with an eye toward the ultimate merits determination.” [53] A Ninth Circuit panel approved of this approach, noting that it “adopt[ed] as our own the well-reasoned published opinion of the district court. [54]

    USCIS seized this opportunity to expand the Kazarian decision nationwide, arguing that it is better to promote “a consistent, uniform, national interpretation of the regulation.” [55] The District Court for the Eastern District of New York soon followed, holding that “sustained acclaim is a component of the ‘final merits determination’” and thus irrelevant to the “antecedent procedural question of whether the plaintiff has satisfied the criterion. [56] The Southern District of New York recently accepted this interpretation in Noroozi v. Napolitano, a case involving the only member of Iran’s Olympic ping pong team. The court succinctly stated its understanding:

    According to the two-step, or Kazarian, approach, “[t]he [reviewer] must first evaluate all the evidence on an individual basis to determine if it meets the [section 204.5(h)(3) ] criteria, and then must consider all of the evidence in totality [,] making the final merits determination.” Under this approach, a reviewing officer may determine that a petitioner has satisfied three of the 204.5(h)(3) criteria, yet may nonetheless determine that the petitioner failed the final merits determination and thus does not qualify. [57]

    The number of courts that have agreed with the USCIS interpretation of Kazarian is a good indication of its validity.

    C. Legislative History

    Congressional intent supports a restrictive EB1 adjudication process. The 1990 Act, which introduced the relevant statute and regulations, included a number of vague, general statements on easing immigration restrictions and allowing highly skilled immigrants into the country. [58] The weight of the evidence, however, weighs the other way. The most unambiguous language comes from the House Report, which provided that the visas be restricted to the “small percentage of individuals who have risen to the very top of their fields of endeavor.” [59] Similar language now appears in the regulation. [60] The House Report also contemplated that extraordinary aliens would have a “career of acclaimed work in the field.” [61]

    When combined with the statutory requirements that the alien provide “extensive documentation” that he or she has demonstrated “sustained national or international acclaim,” the statute sets a very high bar. [62] Even a leading advocate of more liberal skilled immigration acknowledges that “[t]here is no question that the legal standard of extraordinary ability is high.” [63] As one author noted, “the United States has adopted an immigration policy distillable to a cliché: separating the wheat from the chaff.” [64] The Kazarian court recognized that the caselaw on the subject has viewed the regulations as “extremely restrictive.” [65]

    The agency is bound to adhere to congressional intent. It should resist calls from academic commentators to revise its regulations and rules to allow far more EB1 approvals. These reformers argue that the sort of immigrants who could potentially qualify for the EB1 category benefit the United States by advancing science and technology, founding new ventures, and generally enriching our cultural life. [66] These questions, however, are most appropriate for the legislative branch, which represents the society that will absorb new immigrants. A proposal to water down the requirements that immigrants show “sustained national or international acclaim” or that they occupy “the very top of [their] field of endeavor” would amount to agency interference in the legislative process. The USCIS cannot ignore the statute to pursue its own policy aims.

    D. Maintaining Selectivity

    Fulfilling Congressional intent to create a restrictive category requires a mechanism capable of excluding unqualified petitioners. The EB1 category’s unique advantages, including its ability to lead Chinese and Indian nationals around the immigrant visa backlogs, will ensure that aliens file hundreds of meritless petitions each year.

    AILA’s Proposal

    AILA’s substitute for the Kazarian final merits determination fails to provide this mechanism. In the absence of a two-step process, adjudicators must rely on the satisfaction of three criteria to deny meritless petitions. Yet any denial articulated in terms of particular criteria must also comport with Kazarian’s prohibition on “novel substantive or evidentiary requirements.” [67] The combination of these two factors greatly restricts the USCIS’s ability to deny petitions.

    Business immigration advocates have implicitly recognized this weakness in their articles. They argue that the regulations “establish appropriate safeguards to ensure that only those who rise to the level of extraordinary can meet three criteria,” but do not actually explain what these “safeguards” are. [68] AILA allows that adjudicators can determine the evidence’s “credibility and value.” [69] Another organization stated that

    “[t]here are legitimate ‘specific and substantiated’ reasons USCIS might reference in accordance with Buletini, which do not impermissibly supplement the requirements in the regulations . . . [t]here may be something indicating that a piece of evidence submitted, though it meets one of the regulatory criterion [sic], has been falsified or otherwise lacks credibility. Alternatively, the petition may be filed in 2011 but consists [sic] of evidence of extraordinary ability dating from 1998, with little or no documentation of continued work.” [70]

    Credibility and the age of evidence are not broad reasons for denial. This lack of effective denial rationales would lead to a liberalization of the EB-1-1 category.

    The USCIS points to Kazarian in support of this thesis. It submits that the court’s references to the determination are “a critical part of the rationale for the Court’s holding.” [71] The Circuit might have refused to lower the bar for each criterion if the final merits determination was not there as a backstop for meritless cases. Moreover, it rightly notes that “most academics could meet three of the 10 criteria but would not be considered “extraordinary.” [72] For example, a postdoctoral scholar in a research university might have published a few articles and reviewed dissertations. He might also make far more money than other individuals in his particular subspecialty. This does not necessarily mean that he is “one of that small percentage who have risen to the very top of the field of endeavor.” [73] An adjudicator unimpressed with a foreign national’s articles in obscure foreign journals, complete lack of citations, and article about his thesis supervisor that makes a single reference to the foreign national’s accomplishments would be unable to prevent his immigration. This permissiveness is the antithesis of the highly selective category envisioned in the statute.

    Discretion

    The final merits determination’s discretion gives it several advantages over the piecemeal approach. Immigration practice involves a huge number of fields, and thousands of specializations and sub-specializations. Two researchers working on the genetic causes of breast cancer at the same university may operate in completely different research contexts, with different funding, journals, and standards of success. This diversity is even more pronounced outside of the narrow academic field. Energy executives, consultants, dentists, dancers, and artists all vie for consideration. Discretion is the only way to allow for this type of diversity while maintaining high standards.

    The discretion present here is widespread in the field. As the Adjudicator’s Field Manual recognizes, “Even in non-discretionary cases, the consideration of evidence is somewhat subjective. For example, in considering an employment-based petition, the adjudicator must examine the beneficiary’s employment experience and determine if the experience meets or exceeds, in quality and quantity, the experience requirement stated on the labor certification by the employer.” [74] In a National Interest Waiver case, the adjudicator must determine whether the alien “will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.” [75] It may not be possible to define an entirely objective test that effectively sorts the wheat from the chaff.

    III. Reform Proposal



    A. Abuses of Discretion

    This need for discretion does not mean that USCIS has been effectively exercising it. Practitioners have reported that the new policy memo has resulted in decisions that are “unfair, opaque, and inconsistent.” [76] Their concerns largely center on the highly subjective nature of the final merits determination, which they believe has resulted in a muddled adjudicatory standard. [77] Given reports of agency documents listing the wrong gender, name, or field of expertise, this would not be overly surprising. [78]

    USCIS has responded that the policy memo has not led to significant changes. It notes that under either approach, the USCIS must set out specific reasons why the alien does not qualify for the visa. Adjudicators accustomed to applying the criteria confront a final merits determination with little guidance, and may continue to apply their old methods. USCIS adjudicators have generally confirmed this, noting that the final merits determination “did not materially change the analysis of petitions.” [79] The scant empirical evidence on the subject supports this view. [80]

    The systems seems imperfect from either perspective. If AILA is correct, the discretion afforded by the final merits determination is undermining confidence in the system. If the USCIS statistics are correct, it is following its old methods and issuing too many Requests for Evidence in meritorious cases.

    B. Outsource Discretion

    Immigration advocates have proposed a variety of reforms for the “best and the brightest,” including defining more precise criteria [81] , stapling green cards to U.S. science, technology, engineering and Math (STEM) graduate degrees [82] , and sharing the adjudicator’s contact information with the petitioner. [83] This essay takes a different approach, assuming the validity of the underlying statute and proposing the outsourcing of borderline cases to subject-matter experts. The present controversy over the Kazarian decision presents an opportunity to place the final merits determination discretion in the right hands.

    Process

    In this model, all petitions would be submitted to the Dallas Lockbox, which would process and scan them. [84] They could then be distributed to either the Nebraska or Texas Service Center as normal. Adjudicators then would review them for credibility and determine whether they met three of the ten current criteria on a very low standard. Petitions not meeting three criteria could be immediately denied or returned for Requests for Evidence on the missing criterion, preventing adjudicators from wasting time giving detailed responses to frivolous filings. Petitions meeting three criteria and obviously extraordinary could be summarily approved.

    The remaining cases, in which there is some uncertainty on the final merits determination, would be passed on to expert reviewers in a particular sub-field via an online distribution system. These reviewers could make a quick scan of the alien’s resume, as the USCIS would have already verified its claims by reviewing the supporting evidence. They could then provide a more informed judgment of whether the alien is truly extraordinary and a few quick reasons for their opinion. [85] If sufficient resources remain, the USCIS could pass a given petition through several reviewers to obtain three opinions and decide the outcome by a majority vote. At this point, the comments could be returned to the USCIS through the same distribution system for the issuance of a Request for Evidence or Notice of Intent to Deny. The USCIS would still be able to maintain control over the system by vetoing expert recommendations, but it would at least have to explain its reasoning. Responses to this notice could be returned to the same or different reviewers at the USCIS’s discretion.

    Benefits

    This system would have significant advantages over the current model. First, it would reduce the considerable pressure on adjudicators. One report indicated that adjudicators have an average of twenty-three minutes to decide an EB-1-1 case. [86] AILA recently noted that these cases are “often complicated and require an in-depth understanding of an applicant's field of endeavor, the applicant's qualifications, and the complicated legal standard.” [87] Numerous commentators have called for adjudicators to visit research facilities and national laboratories, as occurred during the limited collaboration between the California Service Center, the California Institute of Technology, and NAFSA (an association of international educators). [88] USCIS’s resource constraints make this prospect unlikely. An officer with a liberal arts degree and twenty-three minutes to review a petition simply does not have time to familiarize himself with a highly specialized field.

    Second, this approach would be more efficient. It would require less effort from USCIS officers, so the agency could reduce the staff in the Service Centers. The outside experts would be so familiar with careers in their field that the final merits determination will require less time. A biology professor, for example, would have less trouble evaluating another professor’s career than would a liberal arts college graduate. As one academic analysis put it, “the [USCIS] has effectively established itself as an “expert” in areas where its expertise is most assuredly lacking.” [89] The same article observed that “[t]he effort to be true to the intent of Congress on this issue has placed the [USCIS] in an awkward position.” [90] The USCIS should extract itself from this position by placing control of the final merits determination with subject-matter experts.

    Feasibility

    Though this system would be difficult to implement, it would not be impossible. First, the number of total EB-1-1 filings is lower than many expect. In 2009, for example, only 3,442 EB-1-1 workers entered the United States. [91] The Service Centers combined received 16,894 petitions in 2010, but the final merits determination cases referred to outside reviewers would probably constitute a small part of this total. Though no exact figures exist, the regulatory criteria and the USCIS’s collaboration with a research institute suggest that scientists and engineers make up a substantial fraction of all aliens applying for the EB-1-1 visa. In these cases, established channels exist for peer review of both scientific articles and career accomplishments. In the medical field, for example, the National Institutes of Health Center for Scientific Review contacts roughly 20,000 reviewers to help it evaluate more than 80,000 grant applications each year. [92] The USCIS could pay reviewers a nominal fee, recruit volunteers, or tie the receipt of government funding to the review of a specific number of applications. Compared to the committee meetings and scientific analysis required to approve the expenditure of millions of dollars in government funding, the final merits determination would be an easy task for these reviewers. Even less academic bodies like unions would be able to better contextualize an artist’s work than a USCIS adjudicator.

    Careful measures could help to control the possibility of bias. A blind reviewing process and the elimination of reviewers matched with petitioners at the same institution could help to control specific favoritism. In the scientific field, the many immigrants in leadership positions could bias the system in favor of liberalization. On the other hand, individuals will recognize that they have an incentive to protect their jobs and reduce their competition for research funding. Reliance on unions, as occurred with the O-1 visa, would require supervision to ensure that they did not attempt to exclude all or most foreign nationals. [93] A pilot program could measure the denial rate in each field before the program was expanded to cover all cases.

    The legal vagueness of the final merits determination could pose an issue, but must be considered in relation to the available alternatives. The final merits determination inevitably entails a grant of discretion. USCIS officers are not attorneys. It makes more sense to locate this discretion in the hands of those qualified to use it, rather than those with compressed timetables and slight expertise.

    Existing Models

    Finally, there is already precedent for this type of review. The HHS J-1 Waiver system is a good example. [94] Applicants apply for a waiver of the two-year home residency requirement by submitting a technical application to a panel of relevant experts in the field for peer-review. The criteria include whether “the exchange visitor is uniquely equipped to make original contributions . . . based on his outstanding qualifications and special accomplishments, as confirmed by external recommendation letters.” [95] The adoption of this system to a simpler and less technical determination would be superior to the existing method. This process could also draw on the older model for O-1 petitions. Though the O-1 requirement of union consultation proved controversial, it demonstrated that the provision of letters is possible as a logistical matter. [96] Unions and professional organizations have developed streamlined processes for requesting and obtaining letters, and USCIS officers may be familiar with many of the relevant organizations. [97]

    IV. Conclusion


    The Kazarian final merits determination holds both promise and peril for the immigration system. USCIS officers could wield its discretion through arbitrary denials, creating an unfair and unpredictable process. Carefully controlled, however, it provides an essential tool to maintain the EB-1-1 category’s selectivity. An outsourcing model could greatly improve the process’s efficiency, responsiveness, and justice while allowing the USCIS to adhere to Congressional intent.




    1 This essay does not reflect the author’s personal opinion on the issue.
    2 Press Release, American Immigration Council, Circuit Court Rules USCIS Unlawfully Imposed Arbitrary Requirements (March 4, 2010)(http://www.aila.org/content/default.aspx?docid=31442); Charles Kuck, One for Good Guys—USCIS, Please Follow the Law Next Time, AILA Leadership Blog (March 4, 2010)( http://ailaleadershipblog.org/2010/0...law-next-time/ ); Press Release, Law Office of Jessie Ho, Circuit Court Rules USCIS Unlawfully Imposed Arbitrary Requirements (March 14, 2010)( http://www.jessieho.com/plView.asp?pl_id=166&pl_lb=); Press Release, NAFSA, In Kazarian, Ninth Circuit Finds USCIS Cannot Impose Extraregulatory Requirements in EB-1 Petitions (March 4, 2010)( http://www.nafsa.org/Resource_Librar...B-1_Petitions/
    3 Kazarian v. U.S. Citizenship & Immigration Services , 596 F.3d 1115 (9th Cir. 2010).
    4 Jaimie Bombard, Kazarian v. United States Citizenship and Immigration Services: Clarifying "Extraordinary Ability" Visa Qualifications, 40 Golden Gate U. L. Rev. 417, 426 (2010).
    5 Cyrus Mehta, Kazarian v. USCIS: Discrediting the Circularity Argument in EB-1 Petitions, The Insightful Immigration Blog (March 12, 2010)( http://blog.cyrusmehta.com/2010/03/kazarian-v.html); Kuck, supra note 1.
    6 2011 WL 2117594 (ASPATORE), 21.
    7 Id. (USCIS's misinterpretation of Kazarian and its subsequent application of an inappropriate standard of review has resulted in denied EB-1s that would have likely been approved only one or two years ago.)
    8 Memorandum from Lori Scialabba, Deputy Director of the U.S. Citizenship and Immigration Services (Aug. 31, 2012) ( http://www.uscis.gov/USCIS/Resources...20CISOMB51.pdf ) at 2.
    9 Kayleigh Scalzo, American Idol: The Domestic and International Implications of Preferencing the Highly Educated and Highly Skilled in U.S. Immigration Law, 79 Geo. Wash. L. Rev. 926, 929-30 (2011).
    10 8 U.S.C.A. § 1153(b)(1) (West). This paper will focus on “aliens of extraordinary ability.”
    11 8 U.S.C.A. § 1153(b)(1) (West).
    12 Chris Gafner & Stephen Yale-Loehr, Attracting the Best and the Brightest: A Critique of the Current U.S. Immigration System, 38 Fordham Urb. L.J. 183, 194 (2010).
    13 Premium Processing allows the alien to pay a $1,225 fee to receive a decision, Request for Evidence, or Notice of Intent to Deny on his or her petition within 15 calendar days. See http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD ; http://www.uscis.gov/portal/site/usc...00082ca60aRCRD (“Premium Processing Service is currently available in the EB2 category if Form I-140 is filed on behalf of an alien who is not seeking a National Interest Waiver.”).
    14 Visa Bulletin No. 56 Vol. IX, Bureau of Consular Affairs, U.S. Department of State, available at http://www.travel.state.gov/visa/bulletin/bulletin_5927.html; USCIS Processing Time Information, available at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
    15 8 C.F.R. § 204.5
    16 Id.
    17 Id.
    18 Id.
    19 Id.
    20 Memorandum from January Contreras, Citizenship and Immigration Services Ombudsman (Dec. 29, 2011), at 3. The first letter specifically referred to the similar EB-1-2 category, which requires that aliens satisfy two rather than three criteria.
    21 Id.
    22 Buletini v. I.N.S., 860 F. Supp. 1222, 1229 (E.D. Mich. 1994)
    23 Id. at 1234.
    24 In re [name redacted], File No. SRC 07 800 17067, at 5 (AAO 2009). (“The regulatory criteria are established to assist the petitioner in demonstrating national or international acclaim, and must be interpreted as a whole with the statute. Not all who sit as a judge of the work of others will have extraordinary ability or will qualify under this criterion. The AAO [Administrative Appeals Office] interprets this regulation to require that the selection and participation process for serving as the judge of the work of others in the field be indicative of national or international acclaim in the field.)
    25 Rita Sostrin & Alexander Dgebuadze, State of the Union in the Universe of EB-1 Petitions, in AILA's Immigration Practice Pointers 2010-11 Edition 230 (Rizwan Hassan et al. eds., 2010); Gafner supra note 11, at 215.
    26 Id. at 197.
    27 In re: George A. Verdin, Attorney , D2000-114, B.I.A. 2000. Available at http://www.justice.gov/eoir/profcond...-ImmedSusp.pdf .
    28 Kazarian , 596 F.3d at 1121.
    29 Id. at 1115.


    30 Id. at 1121.
    31 Id.
    32 Id. at 1121 (emphasis added).
    33 Id. at 1122.
    34 Id. at 1121.
    35 Evaluation of Evidence Submitted with Certain Form I-140 Petitions: Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22.2, AFM Update AD11-14. This memorandum displaced the USCIS letters discussed above.
    36 Id. at 1.
    37 Contreras, supra note 19, at 5. USCIS has not otherwise shared its training materials with the public, perhaps from a desire to prevent practitioners from forming their cases to exploit possible loopholes.
    38 Evaluation of Evidence, supra note 34, at 13.
    39 Contreras, supra note 19, at
    40 Corrected Brief for the American Immigration Lawyers Association as Amicus Curiae, In re [name redacted], File No. SRC 10 032 54992, at 1 (AAO 2009).
    41 Contreras, supra note 19, at 5. This request was actually made in response to a different decision.
    42 Scialabba, supra note 7, at 5.
    43 Corrected Brief of AILA, supra note 39, at 7. See also Gafner, supra note 11, at 200 (arguing that the court did not define the final merits determination).
    44 Corrected Brief of AILA, supra note 39, at 3.
    45 Kazarian , 596 F.3d at 112.
    46 Corrected Brief of AILA, supra note 39, at 10.
    47 Brief for the Alliance of Business Immigration Lawyers as Amicus Curiae, In re [name redacted], File No. SRC 10 032 54992, at 11 (AAO 2009).
    48 8 CFR § 204.5.
    49 Id.
    50 Rijal v. U.S. Citizenship & Immigration Services , 772 F. Supp. 2d 1339, 1347 (W.D. Wash. 2011).
    51 Anil Rijal, Individually, Petitioner - Appellant, v. United States Citizenship and Immigration Services, Respondent - Appellee ., 2011 WL 2679884 (C.A.9) at 21; Anil Rijal, Plaintiff-Appellant, v. United States Citizenship and Immigration Services, Defendant-Appellee ., 2011 WL 3689073 (C.A.9) at 13.
    52 Rijal , 772 F. Supp. 2d at 1347.
    53 Id.
    54 Rijal v. U.S. Citizenship & Immigration Services , 683 F.3d 1030 (9th Cir. 2012). But see Niu v. United States, 821 F. Supp. 2d 1164, 1168 (C.D. Cal. 2011) (failing to mention final merits determination and suggesting that it was “likely” that the denial of alien’s EB1 petition was an abuse of discretion).
    55 Scialabba, supra note 7, at 2 (“When USCIS has the opportunity to proceed in a way that conforms to the statute, the regulation, and a leading court decision, and makes good sense from a policy standpoint, there is good reason to seize that opportunity.”).
    56 Hristov v. Roark , 09-CV-2731, 2011 WL 4711885 (E.D.N.Y. Sept. 30, 2011)
    57 Noroozi v. Napolitano , 11 CIV. 8333 PAE, 2012 WL 5510934 (S.D.N.Y. Nov. 14, 2012).
    58 Gafner, supra note 11, at 201. Several congressmen did mention the benefits that immigrants provide during debate.
    59 H.R. Rep. No. 723, 10 1st Cong., 2d Sess., reprinted in 1990 U.S.C.C.A.A.N. 6710, 6739 (Sept. 19, 1990).
    60 8 C.F.R. § 204.5(h)(2).
    61 Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990).
    62 8 U.S.C.A. § 1153(b)(1) (West); Scalzo, supra note 8, at 931.
    63 Rita Sostrin, Making a Case for the Extraordinary Scientist, 387 in Legal Briefs on Immigration Reform (Deborah Robinson and Mona Parsa, eds, 2011).
    64 Scalzo, supra note 8, at, 927-28 (criticizing preference for employment visas).
    65 Kazarian , 596 F.3d at 1120-21 (listing numerous cases in which famous athletes and physicians were granted or denied extraordinary ability visas).
    66 Join the Virtual March for Immigration Reform, New American Economy Action Fund, 2012 (http://www.marchforinnovation.com/); Proposed Immigration Bill Could Stem Silicon Valley’s Brain Drain, The Verge, 2013 ( http://www.theverge.com/2013/4/16/42...visa-expansion ).
    67 Kazarian , 596 F.3d at 1121.
    68 Sostrin, supra note 62, at 387.
    69 Corrected Brief of AILA, supra note 39, at 22.
    70 Brief of the Alliance of Business Immigration Lawyers, supra note 46, at 3.
    71 Scialabba, supra note 7, at 2.
    72 89 NO. 7 Interpreter Releases 371, 372.
    73 8 C.F.R. § 204.5(h)(2).
    74 Adjudicator’s Field Manual, Ch. 10.15 (2011).
    75 Frequently Asked Questions Regarding Entrepreneurs and the Employment-Based Second Preference Category, U.S. Citizenship and Immigration Services, 2011 ( http://www.uscis.gov/portal/site/usc...00082ca60aRCRD )
    76 Contreras, supra note 19, at 2.
    77 Id. at 6.
    78 The author reviewed several Requests for Evidence with these issues.
    79 Contreras, supra note 19, at 5-6.
    80 The most recent data from the USCIS Office of Performance and Quality show that approval and denial rates remained roughly constant from 2005 through the first half of 2011. Contreras, supra note 19, at 6. Immigration advocates have argued that the final merits determination’s vagueness has deterred filings, citing a visa bulletin from 2011.Visa Bulletin No. 32 Vol. IX, Bureau of Consular Affairs, U.S. Department of State, available at http://travel.state.gov/visa/bulletin/bulletin_5424.html (“At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years.”). That bulletin, however, referred to demand “at this time” rather than throughout the year. Id. The broader statistics show almost no change in filing receipts from 2007 to the first half of 2011. Contreras, supra note 19, at 6. Data on the issuance of Requests for Evidence (RFEs) similarly fail to show a jump in restrictiveness. Between 2010 and the first half of 2011, the fraction of cases receiving RFEs at the Texas Service Center increased by 2.4%, but the figure for the Nebraska Service Center dropped by 28.5%. Questions and Answers, American Immigration Lawyers Association Liaison Meeting, USCIS Service Center Operations Directorate (2011) available at http://www.uscis.gov/USCIS/Outreach/...uly%202011.pdf . Though these measures do not incorporate the number of Notices of Intent to Revoke previously approved petitions, immigration advocates have not presented any quantitative evidence that these are increasing or even cited to more than a handful of concrete examples. See Sarah Baker, Kazarian’s Lament, Wolfsdorf Immigration Law Group, 2011 (http://connect.wolfsdorf.com/?p=863).
    81 Corrected Brief of AILA, supra note 39, at 11-22.
    82 Gafner, supra note 11, at 211l; H.R. 399, 112th Cong. (2011)(died in committee).
    83 Marissa Crespo, The Final Curtain Call: Administrative Challenges in the United States O-Visa Process for Foreign Artists and Performers, 36 Colum. J.L. & Arts 101, 123 (2012).
    84 This is already the process for petitions filed without Premium Processing. See http://www.uscis.gov/portal/site/usc...004718190aRCRD .
    85 The USCIS might consider revising the final merits determination to reflect an alien’s skills and potential for future success in the field, but this is more properly a role for Congress. See Suzanne B. Seltzer, J-1 Waiver Through Medical & Health Related Research: The HHS Waiver Process, Klasko Immigration and Nationality Law 2013 (“USCIS petitions focus on an individual's reputation and past contributions to the field, whereas the HHS waiver process focuses on whether a researcher either has skills essential to a particular research project or has a level of skill from which HHS can conclude that the researcher will become a significant research contributor in his or her own right.”)
    86 Gafner, supra note 11, at 213.
    87 Id.
    88 Suzanne B. Seltzer, Dissecting USCIS’ E-1-1 RFE Template, Klasko Immigration and Nationality Law 2013.
    89 Farnoush Nassi, Into the Labyrinth: Artists, Athletes, Entertainers and the INS, 19 Loy. L.A. Ent. L.J. 107, 129 (1998).
    90 Id.
    91 Ganer, supra note 11, at 194.
    92 2013 Office of Extramural Research Report, National Institutes of Health, available at http://grants.nih.gov/grants/PeerReview22713webv2.pdf.
    93 Crespo, supra note 82, at 105.
    94 Exchange Visitor Program, Global Programs and Initiatives, United States Department of Health and Human Services ( http://www.globalhealth.gov/global-p...sitor-program/ ).
    95 http://www.wolfsdorf.com/articles/HH...equirement.pdf
    96 Crespo, supra note 82, at 105.
    97 O-1 and P Visa Forms and Letters, SAG-AFTRA, ( http://www.sagaftra.org/union-info/o...ms-and-letters ).


    About The Author

    David Hirsch first became interested in immigration law as a Legal Assistant at Aronson & Associates, P.A. He is now in his third year at Columbia Law School, where he is a Harlan Fiske Stone Scholar and an Articles Editor for the Jailhouse Lawyers' Manual/Columbia Human Rights Law Review. His submissions reflect solely his own ideas and opinions and do not express the views or opinions of any current or former employers.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
    Comments 1 Comment
    1. Tony Weigel's Avatar
      Tony Weigel -
      I agree that it is a difficult process for USCIS adjudicators to make determinations in EB-1 petitions, but I wonder if you have taken the time to review the AAO decisions for EB-1 cases issued in 2012 and 2013. These decisions reflect a recombination of the initial evidence review and final merits review. In many of these decisions the final merits review simply restates the analysis of how the evidence does not qualify in the first place. There seems to be a pattern of the AAO’s further restricting each criterion as reflected by the AAO's reversal of Service Center determinations that a beneficiary initially met one of the EB-1 requirements. For example, the AAO rejected a Service Center's determination that a beneficiary met the requirements of 204.5(h)(3)(ii) because the Olympic athlete was the member of only one association, his home country’s Olympic association, because the text of the regulation, in their opinion, required membership in associations (plural). It doesn’t take much time or advanced knowledge to envision the life of an Olympic athlete. Under this more restrictive reading of 204.5(h)(3)(ii), how likely is it this person will have the free time to concurrently pursue membership in more than one qualifying association? Finally, the HHS model is not one the USCIS should even consider. They handle a relatively small number of requests and take an excessively long period of time to process. Thank you for sharing your well researched article. I wish you all the best.
      Sincerely,
      Tony Weigel
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