The Kazarian decision and Extraordinary Ability petitions

In my 2010 article “Limits to Arbitrary Agency Action,” I analyzed the 9th Circuit’s decision in Kazarian v. USCIS regarding evidentiary standards in visa petitions based on a claim of the alien’s extraordinary ability (New Jersey Law Journal, Vol. 200, No. 6, May 10, 2010).  Following that decision, the agency issued a Policy Memorandum titled “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 (Dec. 22, 2010).

That Policy Memorandum has been criticized by some in the industry for failing to provide accurate guidance or consistency in the EB-1 Extraordinary Ability determinations, and for potentially enshrining into the adjudication process extra-regulatory evidentiary standards that the Kazarian court had sought to prevent.

Thus, the USCIS’s Office of the Citizenship and Immigration Services Ombudsman recently issued a report that tries to address some of these concerns.  What does this report say?

Basically, the Ombudsman issued three recommendations.  These are:

1.  Engage in formal rulemaking to clarify the regulatory standard, and, if desired, explicitly incorporate a final merits determination into the regulations;

2. Provide the public with guidance on the application of a final merits determination; and

3. Give adjudicating officers more training and direction on the “proper application of preponderance of the evidence standard.”

Officers should also be encouraged to continue making sure that RFEs are in fact responsive to the petition that has been submitted so that they are not asking for material or substantiation that has already been supplied.

Until such issues are resolved it is important to continue to provide USCIS with clear and persuasive evidence of as many regulatory criteria as are applicable to a particular case, and to demonstrate the significance of each accomplishment, not just that the accomplishment exists.  In order to put forth a persuasive Extraordinary Ability petition, especially in light of the uncertain legacy of Kazarian, applicants should attempt to engage law firm assistance that can provide experienced, creative and ethical counsel at all times.

Extraordinary Ability and Social Media Experts

While it’s not easy to gain approval for any visa petition based on extraordinary ability, and applicants should be realistic before deciding whether to apply for a green card on this basis, it is also important to think outside the box.  While many applicants base their petitions on their extraordinary ability in the arts or sciences, it is possible also to apply based on unusually impressive business skills, which may include proficiency and innovation in the area of social media.  The communications world is changing so rapidly and there are so many alien innovators and entrepeneurs whose tech savvy with social media can potentially support an EB-1 application.  For example, someone who has invented an app that is taking the country by storm, or that performs a unique and “how did I live without it?” function, is certainly making an original contribution that others can attest to in a letter of reference.  Of course, it is always important to satisfy at least 3 out of the 10 criteria that USCIS lists for eligibility, such as winning an international or major national prize, participating as a judge of others’ work, etc.  But the EB-1 category is also meant to be somewhat flexible, and proof of any other comparable evidence, if compelling enough, is important to consider.  Just make sure your application doesn’t assume that adjudicators are familiar with the social media world.  It’s up to you (and your attorney) to show the government how your contribution to social media is changing the world.

Improvements to green card and waiver process for out of status spouses

The New York Times published an interesting article today which describes potential changes to the system of granting green cards for spouses married to U.S. citizens where the non-US citizen spouse entered the U.S. illegally.   Currently, would-be immigrants need to travel to obtain a waiver of unlawful presence in Ciudad Juarez, Mexico (or another country of origin).  These waivers can be costly, time consuming, separate the alien spouse from his or her family for several months or more, and are not always granted.   Apparently, the government is proposing to streamline this process to make it more efficient and less unpredictable.  If this rule change occurs, you should consult with an immigration lawyer to determine whether you are eligible to take advantage of the procedures to obtain a green card based on marriage.  For more information read:  http://www.nytimes.com/2012/01/07/us/path-to-green-card-for-illegal-immigrant-family-members-of-americans.html?ref=us.  Remember that only a valid marriage – one that is not entered into for the purpose of obtaining a green card, and one that is based on shared residence and financial endeavors – can support a spousal visa petition.

Welcome to the Extraordinary Ability Visa Blog

This blog is intended for employers, employees, people hoping to emigrate to the United States for employment, and in particular those immigrants with special talents, abilities and impressive qualifications who would like to learn about and keep up with developments in the field of green cards for extraordinary artists, athletes, scientists, professionals, etc. The author, Laurie Woog, Esq., has 20 years experience in the immigration law field, is an adjunct instructor of immigration law and has developed a specialty in preparing successful green card petitions based on extraordinary ability (EB-1) and national interest waivers (EB-2) through careful evaluation, research and writing.

Extraordinary Ability: Narrow your field

When presenting a case to USCIS that is based on the petitioner’s extraordinary ability in his or her field, it is important to make sure that the government understands the nature of the field in question.  For example, while it is certainly accurate to say that a petitioner is a highly acclaimed scientist in the field of biology, there are many esteemed biologists around the globe, and – while true – it might be hard to prove that a particular alien is among the best biologists in the world.  Because most scientists develop a specified area of research, it is important for the petitioner to make the attorney or person preparing the case understand that particular specialty.  Is the biologist an expert ornithologist? Is the biologist seeking funding for a paleobiology project focusing on the evolution of plants?  You get the idea.  It is more likely that USCIS will understand the importance of a petitioner’s field, and that the petitioner will be able to show he or she has risen to the top of the field, if the area of focus is drawn more narrowly.  At the Woog Law Office, we represented a client who was an award-winning actor and made his living in bilingual productions, a rare feat.  By calling attention to the difficulty of his specialty, as attested to by his awards and accolades of knowledgeable bilingual colleagues, the actor obtained his green card in 4 months.