USCIS Ombudsman Recommends Changes to EB-1 EA Adjudication Standards

A few days ago, on December 29, 2011, the USCIS Ombudsman has issued a report and set of recommendations urging USCIS to take proactive steps to ensure clear, consistent and predictable standards are applied to immigrant visa applications under the first employment-based preference category (EB-1) for aliens with extraordinary ability (EA).

Background on the Current EB-1 EA Adjudication Standards

The Ombudsman report and its recommendations were triggered by the lack of clear standards and guidance after the December 22, 2010, USCIS policy memorandum which applied a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to certain employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals.   The policy guidance provides a two-part test to determine eligibility: (1) an evaluation of whether the petitioner provided the requisite evidence; and (2) a final merits determination.   However, as a result of the December 22, 2010 memo, our office (and other in the community) has seen inconsistent adjudications, errors in applying the new standards and, simply, confusion.

Among the main issues with the current EB-1 adjudication approach are (1) the current standards for I-140 adjudication allow for too much subjectivity — in other words, adjudicators can make decisions which are difficult, if not impossible, to challenge, if applied incorrectly; (2) the December 22, 2010 memorandum’s two-part review is not required by the Kazarian decision, and even if it was, the standard has not resulted in clearer standard of review; (3) immigration officers who examine I-140 petitions in the EB-1 category lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability”; and (4) USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination under the two-part test mandated by the December 22, 2010 memo.

The Ombudsman’s Recommendations to USCIS

The Ombudsman report makes several recommendations to USCIS seeking to address the concerns raised after the December 22, 2010 memo.

1.  Conduct Formal Rulemaking to Clarify the Regulatory Standard.

Essentially, the Ombudsman’s office urges USCIS to engage in a process whereby USCIS would propose a rule, incorporating the EB-1 regulatory standard, and then subject that rule to public review and comment, as required by the Administrative Procedure Act.

The use of the APA rulemaking process would assist both adjudicators and others in the immigration legal community to clarify the adjudicatory standard for EB-1s.  The ability to submit written comments to the proposed rule is also supplemented by a requirement that USCIS issues a written statement explaining how it has responded to the public comments.  The APA rulemaking process would provide substantive standards for adjudicators to use in adjudications, and for individuals and employers to use in preparing petitions.  If public comment were negative, USCIS could incorporate reasonable suggestions into a revised rule to accommodate legitimate stakeholder concerns.

2.   In the Interim, Provide Public Guidance on the Application of  a Final Merits Determination

While USCIS goes through the formal rulemaking process, outlined above, the Ombudsman’s office recommends that USCIS provide interim clear objective standard for evaluating the totality of the supporting evidence submitted as part of any EB-1 application.     According to the recommendation, effective guidance would explain that an adjudication may include a limited subjective analysis, but cannot involve discretion, and how to apply subjectivity without leading to arbitrary or inconsistent adjudications. Clear guidance would enhance the quality and consistency of adjudications, and lead to fairer, more predictable outcomes.

3.  In the Interim, Train and Provide Additional Clear and Specific Guidance to Adjudicators on Proper Preponderance of Evidence Standard Application in EB-1 Cases

Additionally, while USCIS goes through the rulemaking process recommended in #1 above, the Ombudsman’s office recommends that USCIS provide adjudicators with additional training and materials clarifying what constitutes proof of: extraordinary ability; outstanding professor/researcher status; and exceptional ability, by a preponderance of the evidence.

Conclusion

We applaud the USCIS Ombudsman’s recommendations on the EB-1 standards.   Our office has witnessed first-hand lack of cohesion by USCIS when dealing with EB-1 filings and we have, on at least some occasions, counseled very cautious approach when applying for EB-1 cases, mainly due to the lack of predictability of the review standards.    The EB-1 extraordinary ability category is intended to attract the brightest talents from a number of fields; instead, the current lack of clear standards has the effect of deterring some very good applications.

While the report contains recommendations, we hope that USCIS would consider it and take steps to implementing it.  We will continue to monitor this topic and provide relevant updates.   In the meantime, please do not hesitate to contact us or subscribe to our free weekly newsletter.