Kazarian v. USCIS: Crucial EB1A Case

Kazarian case plays a critical role in the EB1A green card category. This case determined the process for how USCIS officers make their decisions in all EB1A cases today.

To provide context and better understanding, I have summarized here a historical evolution of the Kazarian case. Kazarian was an Armenian theoretical physicist who submitted his EB1A petition at USCIS (INS at that time) in December 2003.

USCIS denied his petition in August 2005. Kazarian appealed the denial to the USCIS Administrative Appeals Office (AAO) but didn’t succeed. AAO dismissed his appeal in September 2006, finding that Kazarian failed to satisfy any of the evidentiary criteria set forth in the relevant “extraordinary ability” visa regulations.

In the next step, Kazarian filed a complaint with the United States District Court for the Central District of California. But the judgment wasn’t in his favor.

Then, Kazarian appealed to the United States Court of Appeals for the Ninth Circuit. In March 2010, the two judges decided against Kazarian again.

So what is so crucial about Kazarian’s EB1A case? In the last court verdict, the judges pointed out that the original AAO decision wasn’t completely correct and application of the EB1A standard should be done differently in the future.

As a result, the USCIS released a final version policy memorandum in December 2010 which gives guidance to USCIS adjudicators in their work of processing EB1A petitions. This document establishes evaluation of EB1A cases using a two-part approach:

I will cover this two-part analysis and describe the details from the USCIS policy memorandum in the next blog post.

In addition, when I read the AAO’s and court’s decisions and policy memorandum, I found interesting information “between the lines”. What does the USCIS find as insufficient? What are USCIS officers looking for? I pulled out all this interesting info and summarized it in this blog post.

Official Sources

I frequently use text in italics which is the exact citation from the following official sources:

• Appeal decision by AAO (Administrative Appeals Office)
• Court decision by United States Court of Appeals for the Ninth Circuit
• USCIS Policy Memorandum

Kazarian Case Analysis

At first, I describe what was wrong with the original decisions by USCIS and AAO and how the court decision changed the evaluation of the EB1A green card.

Kazarian concedes that he has won no major internationally recognized award (e.g. Nobel prize). Thus, he chose to prove extraordinary ability by providing evidence of at least three of the ten criteria, discussed in my previous post here.

The last court decision states following: The AAO found that Kazarian did not meet any of the regulatory criteria. Only four of the ten are at issue in this appeal. We find that the AAO erred in its consideration of two of these issues.

Let’s check the criteria one by one.

Authorship of Scholarly Articles in the Field of Endeavor

Kazarian submitted proof of his six articles in Astrophysics and his e-print in the Los Alamos National Laboratory archives, but did not demonstrate that other scholars had cited to his publications. The AAO held that without evidence of such citations, Kazarian’s articles did not meet the regulatory definition of evidence, because “publication of scholarly articles is not automatically evidence of sustained acclaim” and “we must consider the research community’s reaction to these articles.”

However, the court corrected this decision and admitted it as sufficient evidence for the Part One of the evaluation:

While other authors’ citations (or a lack thereof) might be relevant to the final merits determination (Part Two) 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. (Part One)

Participation as a Judge of the Work of Others

Kazarian submitted proof that he was a judge of graduate-level diploma works at Yerevan State University. The AAO held that “reviewing ‘diploma works’ for fellow students at one’s own university is not persuasive evidence of acclaim beyond that university,” and that absent “evidence that the petitioner served as an external dissertation reviewer for a university with which he is not otherwise affiliated,” Kazarian’s submission did not meet the regulatory definition of evidence.

Similarly to the previous requirement, court corrected this improper AAO’s decision:

Nothing in that provision suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with. Again, while the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement.

Evidence of Original Scientific or Scholarly Contributions of Major Significance in the Field of Endeavor

The court agreed with AAO in this issue:

Kazarian submitted letters from physics professors attesting to his contributions in the field. The AAO found that his contributions were not major, and thus did not meet the regulatory definition of evidence. The AAO’s analysis here is consistent with the relevant regulatory language, and the AAO’s determination that Kazarian did not submit material that met the regulatory definition of evidence set forth at 8 C.F.R. § 204.5(h)(3)(v) is neither arbitrary, capricious, nor an abuse of discretion.

Display of the Alien’s Work at Artistic Exhibitions or Showcases

Again, court confirmed the correct decision of AAO:

Kazarian submitted proof that he had self-published a textbook, had given lectures at a community college, and had made presentations at conferences. The AAO found that none of these activities were displays at artistic exhibitions or showcases. The AAO’s analysis here is again consistent with the relevant regulatory language, and the AAO’s determination that Kazarian did not submit evidence as defined at 8 C.F.R. § 204.5(h)(3)(vii) is neither arbitrary, capricious, nor an abuse of discretion.

Impact of Kazarian Case

The court stated:

The AAO held that Kazarian provided zero of the ten types of evidence… The AAO should have held that Kazarian presented two types of evidence. The regulation requires three types of evidence.

Thus, the AAO’s errors didn’t affect the overall result (denial).

However, this court decision led to the establishment of the two-part analysis of EB1A cases, later described in USCIS policy memorandum.

The USCIS policy memorandum states:

Objectively meeting the regulatory criteria in part one alone does not establish that the alien in fact meets the requirements for classification as an Alien of Extraordinary Ability.

The court admitted that AAO’s statements about the insufficient quality level might be relevant to the final merits determination in Part Two.

What Is Not Enough

The events described above changed the process of how USCIS officers should evaluate EB1A cases. But, is this a real game changer for a person who prepares EB1A extraordinary ability green card?

The information in the case itself might be more valuable for you. I pulled out what AAO and USCIS officers found as “not persuasive evidence” to support an EB1A extraordinary ability petition.

Surprisingly, Kazarian tried to satisfy all (!) of the 10 criteria and 6 of them were not significant enough to be mentioned in the court decisions.

Let’s dig deeper into the case now.

Kazarian’s mother tried to defend her son by a letter, claiming that he met all of the ten regulatory criteria! She also included his self-published book, with no ISBN number, which has yet to be adopted as a text at any school.

However, it didn’t have the effect she hoped for. The AAO stated:

The petitioner’s self-published book is not persuasive evidence indicative of his national or international acclaim.

We find that the petitioner, who has not established any paid employment in his field prior to filing the petition, has not established such acclaim, which mandates recognition beyond his family and the local areas where the petitioner has studied and volunteered.

Prizes and Awards

Kazarian’s counsel asserts:

The petitioner has been awarded a Medal for high school graduation with honors by the Ministry of Education of Armenian SSR… The medal is a lesser nationally recognized award.

The AAO provided these reasons for rejection:

It cannot be credibly asserted that a medal for high school achievement is an award for excellence in the petitioner’s field of physics. The petitioner had not even begun his higher education in this field when the medal was issued. Moreover, the record lacks evidence regarding-the number of medals issued by the Ministry of Education or other evidence about its significance. A medal for which the most experienced and renowned members of the field do not compete is not indicative of the petitioner’s national or international acclaim in the field.

Kazarian was awarded by the Dean’s Honor for Excellence in Study. AAO declared:

Academic study is not a field of endeavor, but training for a future field of endeavor. As such, academic scholarships and student awards cannot be considered prizes or awards in the petitioner’s field of endeavor. Moreover, competition for student awards is limited to other students, in this case other students at YSU. Experienced experts in the field do not aspire to win student awards. Thus, they cannot establish that the petitioner is one of the very few at the top of his field.

The AAO also rejected the last evidence of an award:

Appearing as one of thousands of other successful individuals in a frequently published directory such as “Who’s Who” is not an award or prize indicative of national or international acclaim.

Membership in Associations

Kazarian submitted solicitations he received to join the American Chemical Society (ACS) and the American Association for the Advancement of Science (AAAS). He is a member of New York Academy of Science.

The submitted evidence didn’t meet this EB1A criterion according to the AAO:

The record contains no evidence that he is actually a member. The petitioner had not demonstrated that the above associations require outstanding achievements of their members. Some very prominent associations remain open to most professionals in the field. Membership is not limited to those with outstanding achievements in the field. Moreover, the petitioner is a physicist. Thus, ACS is not an association in his own field. The petitioner submitted no objective evidence of the membership requirements.

Publications About Alien’s Work in Major Media

Kazarian submitted an article entitled “The Young Talent from Armenia” published in the Louys Periodical. Also, he gave a television interview regarding his professional activities to the Armenian National Network.

The AAO stated it didn’t satisfy this EB1A requirement:

The petitioner submitted no evidence of the circulation of Louys. The petitioner also failed to submit evidence from the Armenian National Network confirming an interview.

Reviewing

Kazarian provided a letter from a Yerevan State University professor and head of the physics department, asserting that he was also a reviewer of diploma works of the Department’s graduates.

The AAO’s reaction:

Reviewing “diploma works” for fellow students at one’s own university is not persuasive evidence of acclaim beyond that university. Far more persuasive would be evidence that the petitioner served as an external dissertation reviewer for a university with which he is not otherwise affiliated.

Later, the court decided that AAO should count this evidence in Part One of the EB1A evaluation process. At the same time, this same argument might be relevant in Part Two (Final merits determination).

Contributions of Major Significance in the Field

Kazarian submitted several letters, all from members of the field, from California and YSU. He also claimed that he published articles and presentations.

Here is the AAO’s evaluation:

The opinions of experts in the field, while not without weight, cannot form the cornerstone of a successful claim of sustained national or international acclaim. The letters containing mere assertions of widespread acclaim and vague claims of contributions are less persuasive than letters that specifically identify contributions and provide specific examples of how those contributions have influenced the field… They do not provide examples of work that has been recognized nationally or internationally as a contribution of major significance to the field of physics.

The letters from independent references who were previously aware of the petitioner through his reputation and who have applied his work are far more persuasive than letters from independent references who were not previously aware of the petitioner and are merely responding to a solicitation to review the petitioner’s curriculum vitae and work and provide an opinion based solely on this review. Ultimately, evidence in existence prior to the preparation of the petition carries greater weight than new materials prepared especially for submission with the petition. An individual with sustained national or international acclaim should be able to produce unsolicited materials reflecting that acclaim.

The petitioner failed to submit letters from physicists nationwide who have relied on this work or evidence that the petitioner published work in this area has been widely cited.

The AAO commented Kazarian’s conference presentations:

The record lacks evidence that the petitioner’s presentations, as published in the proceedings of these conferences, have been widely cited.

The AAO also found Kazarian’s publications to be insufficient:

Not every paper published in a peer-reviewed publication is a contribution of major significance to the field. Researchers are expected to publish their work in such journals to remain competitive as researchers.

The AAO further commented on the book submitted by Kazarian:

The petitioner submitted a book with no ISBN number that the petitioner appears to have published on his own as no publisher is listed in the book. The “reviews” are both from professors at Glendale Community College. A letter from the college indicates that they are “considering” using his book as a text. Without evidence that this book is already widely adopted as a text, we cannot conclude that it constitutes a contribution of major significance.

The AAO’s final statement regarding this EB1A requirement:

To be considered a contribution of major significance in the field of science, it can be expected that the results would have already been reproduced and confirmed by other experts and applied in their work. Otherwise, it is difficult to gauge the impact of the petitioner’s work.

Authorship of Scholarly Articles

Kazarian submitted evidence that he had authored the aforementioned articles, self-published book and he presented his work at conferences.

At first, the AAO rejected this type of evidence:

The petitioner had not established that any of the petitioner’s articles or presentations were considered significant in the field. Publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles. The record contains no evidence that the petitioner’s articles or presentations have been cited. The fact that a single community college where the petitioner has been volunteering and now works is considering adopting the petitioner’s self-published book as a text is not evidence of the book’s significance.

The court later admitted that this evidence should be counted in Part One (!) of the EB1A evaluation. But the insufficient significance of this evidence might be relevant to Part Two (Final merits determination).

Artistic Exhibitions or Showcases

On appeal, counsel asserts that the petitioner’s self-published book, lectures at a community college and conference presentations serve to meet this criterion.

The AAO’ reaction:

A self-published book is not an artistic exhibition or showcase. Moreover, as stated above, it has not been widely adopted and, as of the date of filing, had yet to be adopted at the community college where the petitioner volunteered and now teaches. Scientific lectures and conference presentations are not artistic exhibitions or showcases. Moreover, class lectures are inherent to the field of community college instructor. Not every instructor enjoys national or international acclaim.

Leading Or Critical Role

The AAO stated:

The record lacks evidence that the petitioner, a Ph.D. student and community college volunteer as of the date of filing, has ever performed in a leading or critical role for an organization or establishment with a distinguished reputation as a whole.

High Salary

Kazarian submitted a letter from the President of Glendale Community College confirming that he now earns a salary of $5,574.66 plus $176 for his doctorate per month.

The AAO rejected this type of evidence:

The petitioner, however, does not submit any statistics that would allow us to compare this month salary with the top monthly salaries in the field. Thus, the petitioner has not established that this salary is significantly high for a physicist.

Commercial Successes in the Performing Arts

Kazarian’s counsel asserts that 10,000 copies of the petitioner’s book were printed. Letters from Glendale Community College indicated that text books at the college range from $75 to $150 and confirming that they would consider the petitioner’s book as a text. Counsel asserts that 30,000 students attend the college.

The AAO reacted:

The petitioner submits no evidence that he has actually sold a single copy of his book for any amount. The fact that the petitioner’s book may eventually be accepted as a text is not evidence that he already enjoys commercial success. Commercial success implies success beyond a single community college. Thus, the petitioner has not established that he meets this criterion.

Here is the closing statement of the AAO:

Review of the record, however, does not establish that the petitioner has distinguished himself as a physicist to such an extent that he may be said to have achieved sustained national or international acclaim or to be within the small percentage at the very top of his field. The evidence indicates that the petitioner shows talent as a physicist, but is not persuasive that the petitioner’s achievements set him significantly above almost all others in his field.

Kazarian Should File EB2

In addition, the court decision includes this side note from one of the judges:

Although, as the opinion points out, Dr. Kazarian did not submit three of the types of evidence required for the “extraordinary visa,” he would have been an excellent candidate for an “exceptional ability” visa. (EB2 green card) Indeed, it was likely the error of an ineffective lawyer that led Kazarian to apply for the wrong visa in the first place.

Let’s Learn More About EB1A

I hope you learned something from this case. It shows what USCIS officers found as insufficient and what would carry more weight. This might be valuable when you build your own EB1A case. I hope you have a better idea what to include as the right evidence to meet the EB1A requirements.

In the next blog post, I plan to dig even deeper in this matter. I will pull relevant information from the USCIS policy memorandum which shows how USCIS officers evaluate the evidence and EB1A cases.