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Dr. Poghos Kazarian Speaks Out on the 2010 USCIS Kazarian Policy Memo – Read All About It!

by Bernard P. Wolfsdorf and Sarah J. Baker

On August 18, 2011, the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) issued a request for amicus curiae (“friend of the court”) briefs. This request was made in connection with the 9th Circuit’s review of the AAO decision dismissing Dr. Poghos Kazarian’s appeal of his denied extraordinary ability petition (Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)). This is the latest opportunity for “stakeholder engagement” with USCIS regarding the now controversial Kazarian decision, which resulted in the Interim Memo “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions (AFM Update AD 10-41)” (“Interim Memo”) and finally the Policy Memorandum “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” (dated December 22, 2010) (“Policy Memorandum”).

Let us hope that the outcome of the AAO’s request and recent stakeholder engagements enable this great nation to achieve the Obama Administration’s stated mission of keeping the best and the brightest in the United States. The implementation of USCIS’s erroneous policy contained in the memoranda referenced above has resulted in 12,000 first preference immigrant visa numbers going “unused” as top scientists have left the U.S. in droves, only to make other countries more competitive. Our nation desperately needs innovation that can drive job creation and keep America strong, perhaps more than at any other time in our history. We urgently need to keep physicists like Dr. Kazarian in the United States.

In Dr. Kazarian’s own words: “I have lived in America and contributed to its astrophysics research interests for so long, I cannot consider myself as anything other than an American scientist. Beyond the implications for my immigration status, I am frightened for the future of this country I love so much when I see the great pains its government is taking to ensure that brilliant scientists who offer nothing but a benefit to America are forced to leave. If the terrible USCIS policy bearing my name is not reversed, it will be the final nail in the coffin for American innovation and economic progress.”

Virtually every member of the immigration bar is familiar with Dr. Kazarian’s plight and the Wolfsdorf Immigration Law firm’s successful 9th Circuit petition for panel rehearing on his denied extraordinary ability petition. The latest development in the saga involves Dr. Kazarian’s filing of another, more substantial immigrant visa petition addressing USCIS’ concerns and offers documentation carefully detailing his eligibility under the regulatory standard articulated at 8 CFR § 204.5(h)(3). This new petition demonstrates that Dr. Kazarian meets more than the minimum three criteria qualifying him for consideration as a foreign national of extraordinary ability. Indeed, one of the top theoretical physicists in the world has described Dr. Kazarian as, “…[a]n ou[t]standing scientist in the international arena who has played a key role in providing new insights into our understanding of gravitational theory and its implications for the universe.” This new petition addresses the concerns of USCIS and the AAO, and overcomes the inadequately documented immigrant visa petition prepared by prior counsel.

In spite of this evidence, Dr. Kazarian’s new petition recently received a 10 page denial in which USCIS references the infamous “two-step analysis” for adjudicating extraordinary ability immigrant visa petitions. The agency states, “…the evidence is first considered in relation to the plain language of the [regulatory] criteria, and then considered in the context of a final merits determination.” The Policy Memorandum that articulates this erroneous legal standard misinterprets the 9th Circuit Court’s decision. The Court approved our pro bono petition for panel rehearing and reversed the 9th Circuit’s finding in Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009). In granting the Wolfsdorf Immigration Law Group’s petition for rehearing, the Court held, “the AAO may not unilaterally impose a novel evidentiary requirement” when assessing a foreign national’s eligibility under each of the regulatory criteria articulated at 8 C.F.R. § 204.5(h)(3). The Kazarian decision was primarily about reminding USCIS that the agency and its adjudicators cannot invent novel evidentiary requirements when reviewing petitions. The Court did not directly address the issue of a “final merits determination” for extraordinary ability immigrant visa petitions other than in passing as an obiter dicta, non-binding comment. Instead, the Kazarian case focused on the scope of the evidentiary requirements, as opposed to creating a new approach for analyzing evidence submitted in support of an extraordinary ability, outstanding professor or researcher, or exceptional ability immigrant visa petition.

USCIS has turned the 9th Circuit’s final decision on its head by engaging in precisely what the Court sought to prevent. The Kazarian Court scolded USCIS for making up and applying extra-regulatory evidentiary requirements, and USCIS responded by mandating implementation of a “final merits determination” analysis, which, as explained in the Policy Memorandum, effectively guts the Kazarian decision and allows adjudicating officers to apply an amorphous “I’ll know it when I see it” standard that offers no guidance or hope for predictability in adjudication. For this reason, the Policy Memorandum is ultra vires and should be withdrawn.

The correct binding law as to the “final merits determination” for extraordinary ability immigrant visa petitions is clearly articulated in the District Court case Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994). Buletini held, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard” (emphasis added). Moreover, once this burden has shifted, the evidence must then be evaluated based on the “preponderance of the evidence” standard of proof, as it was articulated in the AAO precedent decision, Matter of CHAWATHE, 25 I&N Dec. 369 (AAO 2010). Matter of CHAWATHE stated, “[e]ven if the director has some doubts as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant or petitioner has satisfied the standard of proof.”

The Kazarian Court did not directly or impliedly reverse the Buletini Court. Instead, it buttressed the Buletini finding by insisting USCIS follow the regulations and not modify the regulatory criteria for adjudicating extraordinary ability immigrant visa petitions. Buletini laid out a clear framework, which stressed that once the foreign national has met at least three of the criteria, the burden shifts to USCIS to explain and articulate “specific and substantiated reasons” why the applicant does not meet the extraordinary ability standard.

The Kazarian Court referenced a “final merits determination” analysis in the following two quotes from the decision:

(1) “While other authors’ citations (or 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” (emphasis added). (Kazarian v. USCIS, 596 F.3d 1121 (9th Cir. 2010))

(2) “…[W]hile the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement” (emphasis added). (Kazarian v. USCIS, 596 F.3d 1122 (9th Cir. 2010))

However, the final merits determination should not constitute a de novo review of the eligibility criteria. The Kazarian decision does not call on the adjudicator to “[d]etermine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the extraordinary ability immigrant classification during a final merits determination.” Rather, as held in Buletini, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability” absent “specific and substantiated reasons” that the foreign national does not qualify (emphasis added). The Buletini and Kazarian decisions, therefore, should be read together to mean: the final merits determination should merely be an evaluation of whether there are other “specific and substantiated reasons” why the evidence satisfying at least three criteria does not indicate that the foreign national has enjoyed sustained national or international acclaim and received recognition for his or her achievements in the field. USCIS appears to have incorrectly interpreted non-binding comments, known as obiter dicta, to implement the precise opposite of the 9th Circuit’s holding.

The Buletini holding has been followed for years and was subsequently echoed in Muni v. INS, 891 F.Supp. 440 (N.D. Ill. 1995). The Muni Court confirmed USCIS decisions cannot rest on “an impermissible basis” which is “against the weight of the evidence and deviate[s] from its own policies and precedents.” Sadly, USCIS’ Interim Memo and Policy Memorandum have ignored the clear findings of the Buletini and Muni Courts, which clearly articulated the appropriate method of analysis for USCIS’ adjudication of extraordinary ability, outstanding professor/researcher, and exceptional ability immigrant visa petitions. The Kazarian decision does not support the approach outlined in the Policy Memorandum; indeed, it explicitly condemns the implementation of new regulatory and evidentiary requirements.

We are encouraged by the fact that the AAO and USCIS are now willing to revisit the Kazarian AAO decision and hopefully will amend the erroneous Interim Memo and Policy Memorandum, which have caused so much damage by driving away top scientists.

About The Author

Bernard P. Wolfsdorf is the past President of the American Immigration Lawyers Association (AILA). Mr. Wolfsdorf has been named the "most highly rated immigration lawyer in the world" by his peers in the 2011 and 20100 editions of International Who's Who of Business Lawyers. "Mr. Wolfsdorf received more votes from clients and peers worldwide than any other lawyer." Mr. Wolfsdorf is a recipient of the AILA Service Excellence Award for providing outstanding volunteer services. The California Edition of Who's Who recognized Mr. Wolfsdorf as "one of the prestigious names in the field" who "knows his stuff back to front." The Chambers Global World's Leading Lawyers for Business guide noted Mr. Wolfsdorf's "outstanding consular law practice" and called him a "cutting-edge thinker." He is listed in 2011 editions of Best Lawyers in America, Martindale Hubbell's Pre-eminent Specialist Directory, Southern California Super Lawyers, Chambers USA and the Chambers Global World's Leading Lawyers for Business. Mr. Wolfsdorf is a California State Bar-Certified Specialist in Immigration and Nationality Law.

Sarah J. Baker is a graduate of McGill University's Faculty of Law (Montreal, Canada) and the LL.M. program at Lewis & Clark College (Portland, OR). She prepares nonimmigrant and immigrant visa petitions and J-1 waiver applications for research scientists and foreign medical graduates. She is a contributing author to the 3rd edition of AILA's Immigration Options for Physicians.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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