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EB-1 Petition Analysis: Kazarian vs USCIS - Discrediting the Circularity Arguments

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  • EB-1 Petition Analysis: Kazarian vs USCIS - Discrediting the Circularity Arguments

    imagesCAPUEO13.jpgEB-1 Petition Analysis: Kazarian vs USCIS - Discrediting the Circularity Arguments (Part 1)

    The decision in Kazarian v. USCIS goes a long way in discrediting the circularity argument that the USCIS often deploys to shoot down petitions filed under the Extraordinary Ability category (EB1A). Even though the petitioner lost in this case, the new re-issued decision is still a victory for those who wish to seek green cards as persons or extraordinary ability or as outstanding professor or researchers.

    Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.

    Layer Bernie Wolfsdorf decided to take on this hopeless case pro bono after it was first denied in 2009. Nobody thought that the Ninth Circuit panel would even agree to review the case again. The whole purpose of seeking review of the decision was not to overturn the denial, but to request the Court of Appeals in the Ninth Circuit to remove, or rather discredit, the circular reasoning of the USCIS with respect to accepting evidence to prove extraordinary ability that was not required by the regulation.

    They believed that by removing this reasoning in Kazarian, it would give the USCIS Service Centers less ammunition to deny EB-1 petitions by rejecting evidence that can otherwise prove that one is a person of extraordinary ability.

    In Kazarian case, the main bone of contention was what constitutes “authorship of scholarly articles in the field.” In the original decision, Kazarian v. USCIS, the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.”

    The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.”

    It was precisely this reasoning that the petitioner Kazarian’s new brief, along with the amicus brief of the American Immigration Council attacked, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

    Fortunately, the new decision in Kazarian acknowledged the AAO’s faulty reasoning, which Kazarian affirmed, and the following extract from the decision is worth noting: “The AAO’s conclusion rests on an improper understanding of 8 CFR § 204.5(h)(3)(vi).

    Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR § 204.5. "

    It is hoped that the USCIS pays heed to the Kazarian court’s admonition of its flawed circularity analysis and stops insisting on evidence that has no basis in its own regulations. Deserving petitioners claiming extraordinary ability who benefit the United States ought to be able to gain permanent residence without jumping through needless hoops and hurdles.

    EB-1 Petition Analysis: Kazarian vs USCIS - Discrediting the Circularity Arguments (Part 1)

    The decision in Kazarian v. USCIS goes a long way in discrediting the circularity argument that the USCIS often deploys to shoot down petitions filed under the Extraordinary Ability category (EB1A). Even though the petitioner lost in this case, the new re-issued decision is still a victory for those who wish to seek green cards as persons or extraordinary ability or as outstanding professor or researchers.

    Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.

    Layer Bernie Wolfsdorf decided to take on this hopeless case pro bono after it was first denied in 2009. Nobody thought that the Ninth Circuit panel would even agree to review the case again. The whole purpose of seeking review of the decision was not to overturn the denial, but to request the Court of Appeals in the Ninth Circuit to remove, or rather discredit, the circular reasoning of the USCIS with respect to accepting evidence to prove extraordinary ability that was not required by the regulation.

    They believed that by removing this reasoning in Kazarian, it would give the USCIS Service Centers less ammunition to deny EB-1 petitions by rejecting evidence that can otherwise prove that one is a person of extraordinary ability.

    In Kazarian case, the main bone of contention was what constitutes “authorship of scholarly articles in the field.” In the original decision, Kazarian v. USCIS, the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.”

    The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” http://www.greencardapply.com/news/news13/news13_0603.htm


    It was precisely this reasoning that the petitioner Kazarian’s new brief, along with the amicus brief of the American Immigration Council attacked, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

    Fortunately, the new decision in Kazarian acknowledged the AAO’s faulty reasoning, which Kazarian affirmed, and the following extract from the decision is worth noting: “The AAO’s conclusion rests on an improper understanding of 8 CFR § 204.5(h)(3)(vi).

    Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR § 204.5. "

    It is hoped that the USCIS pays heed to the Kazarian court’s admonition of its flawed circularity analysis and stops insisting on evidence that has no basis in its own regulations. Deserving petitioners claiming extraordinary ability who benefit the United States ought to be able to gain permanent residence without jumping through needless hoops and hurdles.



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