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What is Two-step Analysis for EB1-A and EB1-B Petitions? Usi
USINFO | 2013-07-19 11:28
Petitioners of EB1, like petitioners in other immigrant categories, need to submit a petition letter and related evidence to support the claims in the petition letter to the USCIS. There is no specific format required. However, petitioners are suggested to follow attentively the requirements specified in law and the USCIS rules.
Many applicants seeking to apply to EB-1 and EB-2 are concerned about the new two-step approach of analysis used by the USCIS now. This article intends to provide an explanation of the two-step analysis by using EB1-A as an example.
A USCIS memorandum issued in August 2010 now mandates two-step analysis. The memorandum provides guidelines for adjudicating EB-1 petitions for foreign nationals of extraordinary ability (EB1-A), EB-1Outstanding Professors and Researchers (EB1-B), and EB-2 foreign nationals of exceptional ability (NIW). The “interim “ guidance addresses how adjudicators should evaluate the evidence that petitioners submit to demonstrate that they meet the requirements of the visa category sought.
In the memo, USCIS revises its guidance on EB-1 evidence because of a decision of the Ninth Circuit, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. Mar. 4, 2010), which found that the agency had unlawfully imposed requirements for EB-1 petitions that were beyond those of the INA (now the USCIS) and implementing regulations. In that case, the petitioner submitted proof of his six published articles and an e-print in the Los Alamos National Laboratory archives in support of his petition seeking classification as an EB-1 Alien of Extraordinary Ability. The AAO rejected this documentation because he did not provide evidence to show the research community’s reactions to his scholarly publications. The Ninth Circuit found this to be error because the regulations do not require petitioners to demonstrate the research community’s reaction to the published articles before they can be considered as evidence and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulation. The court found a similar error in the AAO’s rejection of the evidence regarding the petitioner’s participation in the judging the work of others. The petitioner had submitted evidence that he was a judge of graduate-level diploma works at the university where he earned his PhD and worked as a research Associates. In rejecting this evidence, the AAO held that reviewing the work of fellow students at one’s own university was not persuasive evidence of acclaim beyond that university. The court found that whether judging university dissertations counts as evidence should not turn on which university the judge is affiliated with since this factor is not listed in the rules.
However, the court also suggested that, once a petitioner has submitted the requisite evidence, USCIS is then charged with determining whether the evidence demonstrates both 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 the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.“
Based on the court opinion, USCIS has issued a new guidance memorandum, dated December 22, 2010, with guidelines for adjudicating Form I-140 immigrant worker petitions for classification in EB1-A, EB1-B and EB-2NIW.
Two Steps: The interim guidance states that USCIS adjudicators should evaluate EB1-A, B and EB-2 NIWpetitions in a two-part approach.
Step 1: The adjudicator must determine whether a beneficiary has submitted evidence to meet the criteria for the immigration classification he or she is seeking as required by the USCIS rules.
Take EB1-A as an Example in Step 1:
A petition for an EB1-A extraordinary ability alien, for example, must include evidence of receipt of a major internationally recognized award, such as a Nobel Prize, Academy Award or Pulitzer Prize; or at least three out of ten types of evidence listed in the rules. In determining whether the applicant has received a major award (quite unusual) or have achieved at least three listed types of evidence, adjudicators look at evidence provided to determine how many evidentiary prongs have been satisfied. Basically in the first step, an adjudicator does not look at the “quality “ of the evidence but merely decide if sufficient evidence has been submitted to satisfy the prongs claimed. After deciding at least three evidentiary prongs or one major evidentiary prong has been satisfied, the adjudicator can proceed to the second step.
Step 2: After an adjudicator determines that the petition has satisfied the requirement in the first step, he/she must consider all of the submitted evidence in totality to make a determination as to whether the foreign national meets the requisite level of expertise for the category. In this phase, the adjudicator evaluates all the evidence and determines if, cumulatively, it proves by a preponderance of the evidence that the I-140 beneficiary satisfies the general definition of the category.
Take EB1-A as an Example in Step 2:
For example, an adjudicator for EB1-A case has to determine, in totality, whether the applicant is at the very top of his/her field of endeavor. In making this determination, the quality of the evidence is considered. For example, if one of the evidence submitted is judging others’ work, an internal judging responsibility is inferior to an external responsibility. If the evidence is scholarly articles, the number of citations of the material is an appropriate consideration in the final merits determination.
To sum up, the two-step analysis does not substantially deviate from the standard USCIS used to determine the merits of a petition. The quality of the evidence submitted is still essential for an adjudicator to decide on an application. However, our firm has changed our petition format immediately after the release of the memo to adapt the new trend and expedite the approval of our clients’ cases.
Many applicants seeking to apply to EB-1 and EB-2 are concerned about the new two-step approach of analysis used by the USCIS now. This article intends to provide an explanation of the two-step analysis by using EB1-A as an example.
A USCIS memorandum issued in August 2010 now mandates two-step analysis. The memorandum provides guidelines for adjudicating EB-1 petitions for foreign nationals of extraordinary ability (EB1-A), EB-1Outstanding Professors and Researchers (EB1-B), and EB-2 foreign nationals of exceptional ability (NIW). The “interim “ guidance addresses how adjudicators should evaluate the evidence that petitioners submit to demonstrate that they meet the requirements of the visa category sought.
In the memo, USCIS revises its guidance on EB-1 evidence because of a decision of the Ninth Circuit, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. Mar. 4, 2010), which found that the agency had unlawfully imposed requirements for EB-1 petitions that were beyond those of the INA (now the USCIS) and implementing regulations. In that case, the petitioner submitted proof of his six published articles and an e-print in the Los Alamos National Laboratory archives in support of his petition seeking classification as an EB-1 Alien of Extraordinary Ability. The AAO rejected this documentation because he did not provide evidence to show the research community’s reactions to his scholarly publications. The Ninth Circuit found this to be error because the regulations do not require petitioners to demonstrate the research community’s reaction to the published articles before they can be considered as evidence and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulation. The court found a similar error in the AAO’s rejection of the evidence regarding the petitioner’s participation in the judging the work of others. The petitioner had submitted evidence that he was a judge of graduate-level diploma works at the university where he earned his PhD and worked as a research Associates. In rejecting this evidence, the AAO held that reviewing the work of fellow students at one’s own university was not persuasive evidence of acclaim beyond that university. The court found that whether judging university dissertations counts as evidence should not turn on which university the judge is affiliated with since this factor is not listed in the rules.
However, the court also suggested that, once a petitioner has submitted the requisite evidence, USCIS is then charged with determining whether the evidence demonstrates both 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 the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.“
Based on the court opinion, USCIS has issued a new guidance memorandum, dated December 22, 2010, with guidelines for adjudicating Form I-140 immigrant worker petitions for classification in EB1-A, EB1-B and EB-2NIW.
Two Steps: The interim guidance states that USCIS adjudicators should evaluate EB1-A, B and EB-2 NIWpetitions in a two-part approach.
Step 1: The adjudicator must determine whether a beneficiary has submitted evidence to meet the criteria for the immigration classification he or she is seeking as required by the USCIS rules.
Take EB1-A as an Example in Step 1:
A petition for an EB1-A extraordinary ability alien, for example, must include evidence of receipt of a major internationally recognized award, such as a Nobel Prize, Academy Award or Pulitzer Prize; or at least three out of ten types of evidence listed in the rules. In determining whether the applicant has received a major award (quite unusual) or have achieved at least three listed types of evidence, adjudicators look at evidence provided to determine how many evidentiary prongs have been satisfied. Basically in the first step, an adjudicator does not look at the “quality “ of the evidence but merely decide if sufficient evidence has been submitted to satisfy the prongs claimed. After deciding at least three evidentiary prongs or one major evidentiary prong has been satisfied, the adjudicator can proceed to the second step.
Step 2: After an adjudicator determines that the petition has satisfied the requirement in the first step, he/she must consider all of the submitted evidence in totality to make a determination as to whether the foreign national meets the requisite level of expertise for the category. In this phase, the adjudicator evaluates all the evidence and determines if, cumulatively, it proves by a preponderance of the evidence that the I-140 beneficiary satisfies the general definition of the category.
Take EB1-A as an Example in Step 2:
For example, an adjudicator for EB1-A case has to determine, in totality, whether the applicant is at the very top of his/her field of endeavor. In making this determination, the quality of the evidence is considered. For example, if one of the evidence submitted is judging others’ work, an internal judging responsibility is inferior to an external responsibility. If the evidence is scholarly articles, the number of citations of the material is an appropriate consideration in the final merits determination.
To sum up, the two-step analysis does not substantially deviate from the standard USCIS used to determine the merits of a petition. The quality of the evidence submitted is still essential for an adjudicator to decide on an application. However, our firm has changed our petition format immediately after the release of the memo to adapt the new trend and expedite the approval of our clients’ cases.
