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USCIS Solicits Comments on EB-1 and EB-2 Adjudications for Artists, Entertainers, Scientists, Researchers and Professors, and Business People

In its efforts to be more transparent, USCIS issued a draft adjudication policy memo for public comment due by September 3, 2010. The draft memo instructs adjudicators how to evaluate evidence in EB-1 and EB-2 creme de la creme employment based visa petitions for permanent residence. The policy memo is a response to the 9th Circuit Court of Appeals decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).

EB-1 cases include “extraordinary ability” workers in the arts, science, business, education and athletics; “outstanding researchers and professors” (in academia as well as in private business); and multi-national managers and executives. The memo focuses on the first two EB-1 categories as well as EB-2 “exceptional ability” immigrants. Each category contains a list of possible criteria for which only some of the criteria must be proved with evidence (e.g., two or three might be needed out of six or seven criteria).

In Kazarian, the Court of Appeals held that USCIS had gone too far by requiring additional criteria not required by statute or regulation. In the proposed memo, USCIS relies on dicta in Kazarian in which the court discussed the criterion concerning authorship of scholarly articles: “While other authors’ citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence. 8 C.F.R. § 204.5(h)(3).” The USCIS memo relies on the phrase final merits determination.

In the memo, USCIS interprets Kazarian to require a “two-step” process: first, determine the amount and type of criteria presented; second, evaluate all the evidence together qualitatively to determine if it rises to the level of “extraordinary”, “outstanding” or “exceptional” as the case may be. This contradicts earlier case law and memos in which the petitioner need only prove the minimum number of required criteria to be found to be “extraordinary”, “outstanding or “exceptional”.

The draft memo attempts to set out criterion by criterion exactly what adjudicators should consider and when, and how to perform its qualitative analysis. Therefore, it does not exactly follow the Kazarian Court’s ruling or prior federal court rulings. More denials and litigation are expected if the final memo contains the two-step procedure.

USCIS already rejects cases relying primarily on the qualitative analysis prong it devised. Immigration law practitioners fear this policy will creep into the area of O and P non-immigrant temporary visas which have “extraordinary” and “internationally” or “nationally” acclaimed standards based on a similar criteria. Temporary artists and entertainers, in particular, are experiencing higher denial rates or extensive requests for evidence that cause delays. On August 10, 2010, the Los Angeles Times ran a story about the 20% increase in petition denials for artists and entertainers for any number of reasons. Or, applicants are subject to lengthy and time consuming “requests for evidence.” In July, USCIS Director Alejandro Mayorkas held a “listening session” on O and P visas. The O and P visa criteria were recently posted on the USCIS website. Subsequently, top managers at the California Service Center responsible for deciding these types of cases were replaced. Now, it remains to be seen if these pubic engagement and policy memo changes will result in more timely and positive outcomes for this particular industry, which often has last minute and high exposure needs for O, P and EB-1 and EB-2 petitioners and beneficiaries.

The interesting aspect about the whole process is that USCIS has for the first time made a concerted effort by its new Office of Public Engagement to hold a number of stakeholder meetings and “listening sessions” with organizations that regularly deal with the agency. And now, for the first time, the agency is soliciting comments on policy memos as part of an agency-wide review of all USCIS policies. Until now, most policy memos were issued without consulting the public. While many practitioners would argue against USCIS adjudicating by policy versus regulation or statute, in some cases, policy memos can clarify ambiguities in regulations or statutes. However, USCIS often takes contradictory positions – treating memos as the force of law when it suits their position, and at other times not following its own policies because memos do not have the force of law.

At least the agency is now trying to engage its customers to get a better idea of constituent issues and concerns, the impact of adjudications and policy on business, and to solicit ideas for making fixes. Unfortunately, in this specialized area of employment based immigration, USCIS had to be sued to get to this point in the first place. The real test of the public engagement efforts will be whether adjudication results will follow the law announced by a federal court, and whether USCIS will take into account the public’s comments. Stay tuned.