Tales From the RFE


Introduction: The Best of the Best

In the work that I do at Coane and Associates, I am primarily involved in the preparation of EB-1 Extraordinary Ability petitions. These petitions may be perhaps best characterized as reserved for “the best and the brightest”. The regulation involved, 8 C.F.R. §204.5(h), requires that a petitioner show that he has, “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,” and that he has, “sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” 8 C.F.R. §204.5(h)(2) and (3). While receipt of a major award, such as a Nobel Prize or an Oscar, may be enough to show such expertise, the more likely scenario is that the petitioner needs to meet three of a set of ten different criteria. These include:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  • Evidence of membership in associations in the field which demand outstanding achievement of their members;
  • Evidence of published material about the petitioner in professional or major trade publications or other major media;
  • Evidence that the petitioner has participated as a judge the work of others, either individually or on a panel in the same or an allied field of specialization for which classification is sought;
  • Evidence of the petitioner’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
  • Evidence of the petitioner’s authorship of scholarly articles in professional or major trade publications or other major media;
  • Evidence that the petitioner’s work has been displayed at artistic exhibitions or showcases;
  • Evidence of the petitioner’s performance of a leading or critical role in distinguished organizations;
  • Evidence that the petitioner commands a high salary or other significantly high remuneration in relation to others in the field; or
  • Evidence of the petitioner’s commercial successes in the performing arts.

8 C.F.R. §204.5 (3)(i-x).

There is also one case which comes up – again and again – dictating how these criteria are to be applied. Kazarian v. USCIS, 596 F.3d 1115, 1121 (9th Cir. 2010) led to a change in USCIS policy in which the agency is, ostensibly, to take a two-tier approach to the adjudication of these petitions. First, the adjudicator is to determine which, if any, of the ten criteria petitioner has met. Then, once the criteria have been met, to look at the “totality of the evidence” to determine whether the petitioner is more likely than not to possess the required level of expertise. Kazarian v. USCIS, 596 F.3d 1115, 1121 (9th Cir. 2010). More importantly, perhaps, is Kazarian’s take on how the evidence should be analyzed in the first part of the analysis, where it states that, “neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5.” Id. In other words, they can’t make things up.

Not that this stops them from doing so. As one might imagine, the EB-1 petitions are very document intensive – an average one might be anywhere from 400 to 700 pages, and I have prepared them with as many as 1,300 pages of evidence. In addition, as one can tell from the above criteria, many of them are extremely subjective. What, precisely, is “major significance”? What is an “outstanding achievement”? What constitutes a “critical role”? With so much left up to the individual adjudicator’s discretion, it is perhaps not surprising that the Extraordinary Ability petition is not-uncommonly the subject of a Request for Evidence (RFE) in which the USCIS attempts to “clarify” its positions regarding what, exactly, each of these criteria demand, and how they can be met.

As might also be anticipated, however, these RFE’s often are asking for unnecessary evidence, creating new and unsupported new evidentiary standards and even, in some cases, outright ignoring the evidence in front of them. This series explores some of the more interesting assertions the agency has made in RFE’s which they have issued, and how those assertions might be addressed in a response.

Part 1: Here comes the Judge

Of all of the criteria by which a petitioner might show that they qualify for the EB-1 extraordinary ability designation, it would seem that one of the least subject to subjective opinion might be the one ensconced in 8 C.F.R. §204.5(3)(iv) – that the petitioner can provide, “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.” 8 C.F.R. §204.5(3)(iv). As regulations go, that is some tight, clear drafting. So long as the petitioner can show that they have judged someone else’s work, or that they were part of a panel which judged that work, and that the work was either in the petitioner’s field or in a related field, that should – it would seem – meet the strictures of the regulation.

The USCIS, however, has indicated in several RFE’s that there is, in fact, a great deal of wiggle room within that language, and they have imposed a number of additional hurdles which, on their face, are not only the kinds of “novel substantive or evidentiary requirements” which Kazarian disallows, but are actually in conflict with the agency’s own policies and precedent, not to mention often conflicting with language in the same RFE.

The first of these which has appeared in a number of RFE’s received at our office is that, “The phrase, ‘a judge’ implies a formal designation in a judging capacity.” There is, of course, nothing in the regulation which says that. And the USCIS’ own policy says, “For example: Participating in the judging of the work of others in the same or an allied field of specialization alone, regardless of the circumstances, should satisfy the regulatory criteria in part one.” Adjudicator’s Field Manual (AFM), Ch. 22.2(i)(A). That is the case in every instance in which the “formal designation” has been brought to bear. The same RFE’s in which this “implied” additional hurdle is attempted include language indicating, “the petitioner has provided evidence of judging others work based upon this (sic) leadership positions held during his career,” and “[t]he evidence provided shows that the beneficiary has reviewed and judge (sic) the work of his subordinate employees.” Both of those should meet the USCIS policy, but because the “formal designation” is implied, the agency is making a very strange case that judging never counts unless the person doing it is called a judge. By that logic, Paula Abdul would meet the criterion thanks to her time as a “judge” on American Idol, but Warren Buffet – a man who has analyzed the work of hundreds of stock traders – would not.

More common is an assertion in the RFE to the effect that, “that “conducting performance reviews or recommending subordinate employees for promotion or rewards does not constitute judging the work of others” or, even more egregiously, “It is insufficient to meet the plain language of this criterion based on documentation that reflects expected or likely job duties of judging unless the petitioner demonstrates that he actually participated as a judge of the work of others.” The former has no basis in the language of the regulation or in the USCIS policy governing it. The latter is a) circular, since it basically says that having job duties which involve judging are insufficient because they do not show judging; b) clearly incorrect, since there is nothing in the “plain language” which says that and c) in the same RFE which acknowledged – one paragraph earlier, that the petitioner, “has provided evidence of judging others work based upon this (sic) leadership positions held during his career.”

How, then, can these ridiculous arguments best be answered? One way is, of course, by pointing out that Kazarian disallows these kinds of ultra-vires “novel substantive or evidentiary requirements”, as does the USCIS policy based upon it. Kazarian at 1121 see also AFM at 22.2(a)(A). Perhaps more convincing, though, is language from the AAO which – although it is culled from non-precedent decisions – reflects that the USCIS has not generally followed these policies. The “designation” argument can be addressed by In Re: Petitioner: [IDENTIFYING INFORMATION REDACTED BY AGENCY] & Beneficiary: [IDENTIFYING INFORMATION REDACTED BY AGENCY], 2013 WL 5538174 (DHS). More specifically, that case (and others, relied upon the Merriam Webster Dictionary definition of “Judge”, as “one who judges: as (a) a public official authorized to decide questions brought before a court; (b) often capitalized: a tribal hero exercising leadership among the Hebrews after the death of Joshua; (c) one appointed to decide in a contest or competition: umpire; (d) one who gives an authoritative opinion.” See http://www.merriam-webster.com/dictionary/judge, cited in In Re: Petitioner: [IDENTIFYING INFORMATION REDACTED BY AGENCY] & Beneficiary: [IDENTIFYING INFORMATION REDACTED BY AGENCY], 2013 WL 5538174 (DHS) (emphasis added). So long as petitioner can show that the judgments he made as a part of his position were “authoritative” – that is, that his judgments carried the authority to have direct consequences within the context of the project – he should meet the criteria based upon the definition the agency itself relies upon. There is no need to “imply a formal designation” if the definition itself clearly lays out the criteria. If the petitioner was responsible for supplying the final, authoritative judgment assessing both the work done on the representative projects and the overall performance of the employees working on those projects, easily putting him within the agency’s own definition.

Another case, which can be used against the “subordinates don’t count” argument, is Matter of M-A-, ID# 15319 (AAO Feb. 8, 2016), a Managing Director of a magazine who, “[i]n this capacity…reviews all the news, articles, comments etc.,” and who, “evaluates the work of all the employees [at the magazine] in the editing and news section,” was found to have, “documented his 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,” and therefore to have met the criterion. Matter of M-A-, ID# 15319 (AAO Feb. 8, 2016). Presumably, the petitioner similarly reviews the work and the overall competency of subordinate employees.

Again, these are non-precedent decisions, but when combined with Kazarian’s admonitions against ultra-vires “novel substantive or evidentiary requirements” and the USCIS’ own policy manual, they can make a powerful argument that, so long as the petitioner has made authoritative decisions based upon his evaluation of others’ work, the criterion should be satisfied. Kazarian at 1121.

Next time: Is your petitioner in (leading or) critical condition?

About The Author

Coane and Associates is a full-service general practice firm. We regularly represent clients in employment and labor law, as well as immigration law. Our other areas of practice include litigation, appeals, personal injury, state and federal administrative proceedings, business and commercial law, school law, family law, contracts and other general civil matters. Our practice is both nationwide and international. We have represented or consulted with clients from all fifty states and more than one hundred countries. We represent clients before government agencies and various courts throughout the United States. We have the capability and experience of associating with co-counsel throughout the United States and throughout the world, where necessary. Bruce Coane and Matt Gaffron jointly wrote this article.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.