In my previous comment dealing with O-1 petitions, I discussed a positive feature of the latest USCIS guidance concerning this topic, namely an expanded definition of the term "comparable evidence" which may make it easier for many O-1 petitions to be approved.

However, there is also a negative side to this same recent USCIS guidance This is that it formalizes a doctrine found nowhere in the O-1 regulations, and which in fact goes against both the language and the spirit of those regulations. This doctrine, often called the Kazarian doctrine, holds that deciding whether someone meets the qualifications for "extraordinary ability" should be a two-step process. Complying with the actual O-1 regulations, according to this doctrine, is only a first step.

After meeting the often complex and daunting standards contained in the regulations themselves the O-1 candidate must then pass a "Final Merits" or "Totality of the Evidence" test, which is contained nowhere in the O-1 regulations, but gives O-1 examiners broad discretion to deny even the most meritorious petitions for almost any reason.

It is also Ironic, to say the least, that the claimed authority for imposing this additional test in violation of both the letter and spirit of the O-1 regulations comes from a 12-year old Ninth Circuit Court of Appeals decision that strongly condemned the practice of USCIS examiners who make their own immigration rules that are not supported in the applicable statute or regulations.

In Part 2 of this 3-part series, i will go back to the root of the "Totality of the Evidence" of extraordinary ability doctrine, known as the Kazarian doctrine, and show that it originated in some offhand, aside comments by a Circuit Court of Appeals in an EB-1 case (not O-1) that had nothing to do with the actual decision in that case and therefore have no precedent value. I will show that even these casual, side comments about a supposed two-step decision-making process in the Kazarian case were unjustified and had no basis in the EB-1 regulations.

Then, in Part 3 of this series, i will show that the erroneous Kazarian doctrine spread like a cancer, without any rationale or discussion, from the EB-1 universe over to the orbit of O-1, a very different immigration classification from EB-1 and, at least regarding O-1B ("Artist visa"), with very different requirements.

By way of introduction,12 years ago, on March 4, 2010, the Ninth Circuit Court of Appeals, in Kazarian v. US. a case in which this question was not an issue, and which was decided on entirely different grounds (which lawyers refer to as dictum, or a side comment only) made a statement to the effect that determining whether an EB-1 candidate had extraordinary ability would be a two-step process.

In effect, the court stated that complying with the USCIS regulations specifying what constitutes evidence of extraordinary ability was only a preliminary step, and that the USCIS examiner would then make a "final merits" determination.. The court was vague about what factors the examiner should take into account in making this determination

While the Kazarian Court did not use this term, USCIS, in its own guidance on this topic, refers to this "final merits" test as being based on the "totality of the evidence", without much explanation of what kind of evidence this refers to. In effect, this gives USCIS examiners broad discretion to deny extraordinary ability petitions even though the petition beneficiaries have submitted all of the evidence required by the regulations.

I will discuss the Kazarian decision, and why it appears to have had so much influence on O-1 (not only EB-1) decision-making, in more detail in Parts 2 and 3 of this series.

In the meantime any readers who have experienced O-1 RFE's or denials based on a "final merits" or "totality of the evidence" determination even after an O-1 candidate has met at least requirements for showing extraordinary listed in the O-1A or O-1B regulations, or has questions about this issue is welcome to contact me at the address below.

Roger Algase, Esq. is a New York City-based lawyer who graduated from
Harvard College and Harvard Law School, and has been representing skilled and professional immigration clients for more than 30 years. His email address is:algaselex@gmail.com