In the United States there are two routes to becoming a permanent resident: adjustment of status or consular processing. An adjustment of status is exactly what the name suggests. An alien “in status” in the U.S. can “adjust” that status from non-immigrant to immigrant. This option is only available for those already in the United States. The second option, consular processing, is largely for aliens living abroad. The benefits and drawbacks of adjustment of status vs consular processing are several and should be considered thoroughly before proceeding.
Historically, more people receive their green cards through an adjustment of status than consular processing. The benefits of an adjustment of status vs consular processing suggest that for many people this option is indeed preferable. However, only those foreign beneficiaries who are in the United States with a valid non-immigrant visa may apply through this route. Usually they have the option of applying through an adjustment of status or through consular processing. Those petitioning through an employment-based preference often hold an H1B non-immigrant visa, which allows them to work in the United States. Applying for permanent residency through an employment-based petition (I-140) requires the foreign beneficiary to decide at the time of filing which route to residency they wish to pursue.* There are several considerations to take into account when making this decision; consulting a reputable immigration attorney is advisable. Below are outlined the benefits and drawbacks of an adjustment of status vs consular processing for those applying through an employment-based visa.
The second avenue for applying for legal permanent residency is consular processing. The Department of State’s Bureau of Consular Affairs handles this process. Foreign beneficiaries who are living abroad and do not hold a valid non-immigrant visa, such as an H1B, must apply via consular processing. In some cases, this avenue may also be attractive for foreign beneficiaries who are currently living and working in the U.S. Applying for permanent residency through an employment-based petition (Form I-140) requires the foreign beneficiary to decide at the time of filing which route to residency they wish to pursue.* There are several considerations to take into account when making this decision; consulting a reputable immigration attorney is advisable. Regardless of the avenue pursued, the I-140 application is adjudicated by USCIS. If the petition is approved and the petitioner has chosen to have the green card processed using a consulate, the USCIS will forward the petition to the Department of State’s National Visa Center (NVC). The NVC will notify the foreign beneficiary when they receive the approved petition and inform the petition when supporting documentation and processing fees should be sent. When a green card application is processed via a consulate, an immigrant interview is required before legal permanent residency can be approved. Additionally, an “immigrant fee” must be paid to the USCIS for each beneficiary before the green cards can be issued. Below are listed some of the benefits and drawbacks of utilizing consular processing for an employment-based immigrant petition.
The following is a chart of the varying costs of pursuing adjustment of status vs consular processing. The base cost of applying for legal permanent residence through consular processing is much lower; however, after additional costs such as travel expenses are taken into account, it may ultimately be much more expensive. Immigration attorney fees are also not considered in these cost estimates.
There is no statutory prohibition preventing the concurrent filing of a petition via both consular processing and adjustment of status. However, the USCIS established in an August 2000 policy memorandum that it considers this not to be “an efficient and effective use of the Service’s resources.” The concern is also raised that concurrent filing may result in the allocation of more than one visa number to the same foreign beneficiary. Additionally, if the USCIS discovers a petition being processed both ways, it may consider the adjustment of status petition to be abandoned. This is less likely to happen if the case starts with consular processing and is changed to an adjustment of status. Having concurrent applications with both the USCIS and the Department of State keeps certain benefits available to the foreign beneficiary; however, due to the potential consequences, it is strongly advised that the petitioner consult with a reputable immigration attorney before attempting this.
If the petitioner wants to keep the option open of switching from one process to another, it is best to file the original petition as a consular processing case. Since the employment-based petition goes through the USCIS either way, to switch from consular processing to adjustment of status is relatively easy because they already have all the necessary documentation. All the petitioner has to do in this case is file an adjustment of status application. However, to switch from adjustment of status to consular processing requires the filing of Form I-824, which currently costs $405. Approval for this form may also take up to a year, significantly extending the time it takes for the foreign beneficiary to receive a green card.
On October 17, 2000, the American Competitiveness in the Twenty First Century Act (often abbreviated AC21) amended the Immigration and Nationality Act (INA) regarding H1B non-immigrant workers. There are four main provisions under the AC21:
The last two provisions are related to the process of becoming a permanent legal resident. They should be carefully considered before filing an employment based petition (Form I-140), particularly if the beneficiary may need to take advantage of one of them before being issued a green card. Despite some ambiguity, the language of the law only specifically mentions adjustment of status (Form I-485); therefore, consular processed petitions may make the beneficiary ineligible for these provisions.
Section 104(c) of the AC21 states that the foreign beneficiary who has an approved I-140 for a first, second or third preference employment-based immigrant visa, but does not have a current priority date may be granted an extension of his or her non-immigrant status until the application for adjustment of status has been adjudicated. Points (1) and (2) of Section 104(c) make no mention that pursuing an adjustment of status (as opposed to consular processing) is a qualifying factor to be considered for this provision. However, the final comment seems to imply that this provision is indeed meant specifically for those seeking permanent residency via a change of status.
That said, the language of this section introduces some ambiguity regarding prospective foreign beneficiaries. Those qualified beneficiaries are eligible for an “extension” of the non-immigrant visa. In immigration law this term has multiple meanings, which creates some doubt as to whether the only eligible foreign beneficiaries are those currently in the U.S. maintaining H1B status. Are those outside the U.S. or in the U.S. under a different non-immigrant status excluded from this provision? It depends on whether the term “extension” refers to an “extension of stay” or an “extension of visa validity.” An “extension of stay” implies that the alien is in the U.S. and needs to extend his or her stay. Under this meaning, only those currently in the U.S. maintaining H1B status are the intended beneficiaries of this section of the AC21. On the other hand, “extension of visa validity” implies only that there is a visa in need of extension. This covers a much wider range of people, including those outside the U.S. who hold a current H1B visa and those currently in the U.S. who entered under a different kind of visa.
Section 106(a)&(b) of the AC21 refers to the limitation established in Section 214(g)(4) of the INA. That is, the stay of nonimmigrants under H1B status is limited to six years. Section 106(a)&(b) offer an exception to this limitation. Section 106(a) states that this limitation does not apply to foreign beneficiaries for whom it has been over 365 days since filing either an application for labor certification or an employment-based immigrant petition. The exact language of this section states this provision is for “any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(1)(15)(H)(i)(b).” By itself, this phrase describes an incredibly broad group of people, including those in the U.S. under a different non-immigrant visa, those out of status in the U.S. and those abroad.
However, the language of subsection (b) seems to contradict subsection (a) to some degree. Section 106(b) of the AC21 states that the Attorney General may “extend the stay” of a foreign beneficiary who qualifies under subsection (a) in one-year increments until his or her lawful permanent residence status has been decided. The use of the phrase “extend the stay” implies that the foreign beneficiary is an alien currently in the United States under the status that would allow the extension (the H1B visa). Essentially, subsection (b) assumes that subsection (a) says something that it does not.
Section 106(c) of the AC21 is labeled “Increased Job Flexibility for Long Delayed Applicants for Adjustment of Status.” It states that those foreign beneficiaries whose applications for adjustment of status under section 245 of the INA remain unadjudicated for over 180 days may change jobs or employers without invalidating their adjustment of status applications, under the condition that the new job is in the same or similar field for which the employment-based visa was approved.
This subsection seems to explicitly identify prospective foreign beneficiaries as exclusively those who pursue legal permanent residence via an adjustment of status. One of the dangers of taking advantage of this provision is when filing an I-140 and an I-485 concurrently. If the I-140 is denied, the foreign beneficiary runs the risk of immediately becoming out of status.
There are certain benefits in applying for legal permanent residency through an adjustment of status versus consular processing. One of the drawbacks of utilizing consular processing is commonly understood to be that those foreign beneficiaries cannot benefit from the H1B 7th year extension provided by the AC21. The language of the subsections, while slightly ambiguous, only explicitly mentions adjustment of status. Consular processing is never directly addressed by the law. This may be due to the intent of consular processing: providing an avenue to legal permanent residency for those who are not in the U.S. and do not currently hold a non-immigrant visa. These people only have the one option of consular processing. However, the fact that those with legal status in the U.S. do have the option of either adjustment of status or consular processing raises the question of whether these H1B exceptions can be granted for those pursuing consular processing as well.
Adjudicator decisions in matters such as these tend to be highly inconsistent; therefore, it is best to talk to a lawyer if the possibility exists of needing to take advantages of any of the provisions of the AC21. However, a May 2005 policy memorandum published by the USCIS states that, at least in reference to Section 106(a)&(b), the adjudicator should not deny a request for H1B extension beyond the 6th year if the foreign beneficiary has chosen consular processing instead of adjustment of status.
The concept of “cross-chargeability” is provided for by Section 202(b) of the Immigration and Nationality Act (INA). The purpose of this option is to support family unity by not enforcing separate priority dates. When a principal beneficiary qualifies for an employment-based immigrant visa, his or her spouse and any children under the age of 21 can also apply for a green card on the same petition. The spouse and children, referred to as “derivative” beneficiaries, do not need to independently qualify for immigrant visas. However, the visa numbers of derivative beneficiaries are still counted in the worldwide level. That is, when a principal beneficiary qualifies under a second-preference employment-based immigrant visa and receives his or her green card, there is one less number allocated for that preference category. If the principal beneficiary also has three derivative beneficiaries, it means that altogether there are four less visa numbers available in that preference classification.
In addition to the visa numbers allocated for employment-based second preference visas, the visa numbers must also be subtracted from the appropriate chargeability area quotas. This is where cross-chargeability can be a useful strategy for acquiring a green card more quickly. Section 202(b) of the INA clarifies that an area of chargeability is defined as the foreign state in which the beneficiary was born. This is an important point, because the visa number for someone who was born in India, but has been a citizen of Canada since childhood would still be charged to India. However, there are four exceptions:
While each of these four exceptions have their place, the first two are the most commonly invoked instances of cross-chargeability when a family, as derivative beneficiaries, is included in an employment-based immigrant petition. The second exception, however, has been unevenly interpreted by the United States Citizenship & Immigration Service (USCIS) and the U.S. Department of State’s Bureau of Consular Affairs (DOS). This can lead to potentially dire consequences for foreign beneficiaries who attempt to apply it to their case.
There are two different ways to apply for a green card. Foreign beneficiaries who are in status in the United States apply for an “adjustment of status” to change their status from non-immigrant to immigrant. Barring travel, foreign beneficiaries who are not in the United States do not have a status to adjust and must apply through consular processing. Adjustment of status cases are adjudicated by the USCIS. Determinations are made using a variety of tools, including the INA and associated regulatory code, guidelines provided by the Adjudicator’s Field Manual (AFM) and precedent decisions. The DOS handles consular processing and has published their own manual that interprets the INA, which can be found in the Visa Volume of the Foreign Affairs Manual (FAM). The FAM includes a note (9 FAM 40.1 N8) recognizing that a derivative spouse may have a more “favorable” area of chargeability. In this case, the principal beneficiary may be charged to his or her wife’s foreign state, as long as there are visa numbers available. The note further states that when this occurs, in a sense, both beneficiaries may be considered principal beneficiaries: one for the preference status and one for the area of chargeability.
For example, if a foreign beneficiary, born in India, is applying for an employment-based second preference immigrant visa, chances are the priority date will not be current. However, if this foreign beneficiary is married to someone born in Canada, under the FAM interpretation, the principal beneficiary (the one qualifying for the immigrant visa) may be charged against the foreign state of the derivative beneficiary (the principal beneficiary’s spouse). This means the principal beneficiary may file the I-140 and I-485 concurrently without having to wait until the priority date for India becomes current. However, this is not specifically provided for in Section 202(b). Instead, the statute implies that the derivative beneficiary can benefit from the principal beneficiary’s foreign state, but not necessarily the other way around. The language of the INA suggests that the alien benefiting from an exception to his or her area of chargeability must be the one “accompanying” or “following to join” the qualifying alien. The “qualifying” alien being the one who has already received or qualifies for an immigrant visa.
However, common practice suggests that either direction of cross-chargeability is accepted by the USCIS. With regularity, cross-chargeability cases are approved. There has also been acknowledgement among service centers that the application of cross-chargeability from principal beneficiary to derivative beneficiary is acceptable. For example, during a 2006 liaison meeting between the USCIS and the American Immigration Lawyers Association (AILA) at the Houston Service Center, the USCIS acknowledged that cross-chargeability is taken into account. The question was given in response to an example directly related to a principal beneficiary being charged against a derivative spouse’s area of chargeability.
That said, one potential problem lies with the fact that not all USCIS adjudicators are aware of this application of law or notice the request in the petition. Immigration officers have large amounts of documents to sift through in any given day and sometimes they miss things. In order to combat these issues, cases requesting cross-chargeability should:
It is always important to remember that discretion rests with USCIS adjudicators and application of this strategy under certain circumstances remains inconstant. Be sure to craft a compelling presentation of your request for cross-chargeability.
A priority date is an element of the system designed to equitably distribute green cards. As there are only a limited number of visas available each year, this system is necessary to organize the application process. The priority date creates a queue by assigning each petition a place in line. When a priority date becomes “current” is allows a foreign beneficiary to apply for an adjustment of status in order to become a permanent resident. The priority date is determined by the filing date of a petition, the preference class of the visa that provides eligibility and the country of origin of the foreign beneficiary.
A yearly worldwide limit was established by the Immigration and Nationality Act of 1990 (IMMACT 1990) and codified in 8 U.S.C. § 203. As the United States can only admit a finite number of immigrants, this number was set at 675,000. Every fiscal year, from October 1 to September 30, at least 675,000 visas are available to foreign beneficiaries who apply for an immigrant visa. A certain amount of these available visas are allocated to each of the different immigrant visa categories: family-sponsored, employment-based and diversity lottery. For example, 140,000 visas are set aside each year for employment-based immigrant visas. Each preference category of employment-based visa receives a portion of these 140,000 visas. Additionally, each country has a maximum quota of visas that may be approved each year. The intention of this quota system is to balance the available visas across the world population. Otherwise, immigrants from countries such as China or India, whose combined citizenry currently makes up over a third of all humans, may be over represented. No country may receive more than 7% of the available visas allocated for any given visa category. For example, 7% of the available 140,000 employment-based visas is 9,800; therefore, no country may receive more than 9,800 of them in a given year.
A foreign beneficiary’s priority date is often determined by the date the I-140 petition was filed with the USCIS. Alternately, for employment-based visas that require labor certification, the priority date is determined by the date the Department of Labor receives an application for labor certification. The exact priority date is referenced on Form I-797 (“Notice of Action”), which is issued by the USCIS in various circumstances, such as approval of a petition.
A priority date only becomes important when no visas remain for either the country of origin or the particular category of visa for which the foreign beneficiary applies. For employment-based visa applications, apart from China and India, this is usually only a concern for foreign beneficiaries applying for third preference. The priority date for all other countries and preferences for employment-based visas is almost always “current.” A “current” priority date means that an immigrant visa petition (Form I-140) may be filed concurrently with an application to adjust the status of the foreign beneficiary (Form I-485). In this circumstance, as long as the application for adjustment of status is approvable and an available visa number remains at the time the immigrant petition is approved, the USCIS officer will generally consider the I-485 at the same time. Approval notices will be sent separately, but there will be no need to wait for approval of the I-140 before filing the I-485, which delays the issuance of a green card.
Permanent residents hold an identification card which is often referred to as a green card. The form that needs to be filed in order to become a legal resident is known as an application to “adjust status.” Every non-citizen that is in the United States is either “in status” or “out of status.” This refers to the legal right the non-citizen has to be in the country. If the alien is following the requirements of the visa which allows the alien to be in the country, the alien is “in status.” If the alien has violated the conditions of his or her visa, the alien is “out of status.” In order to apply for a green card, the alien must be “in status.” The applicant requests that the foreign beneficiary’s status be changed from non-immigrant to immigrant, or permanent resident. An approved I-140 petition signifies that a foreign beneficiary has been found eligible to become a permanent resident. An approved I-485 allows the foreign beneficiary to work, live, enter and exit the United States for the rest of his or her life (barring a revocable offense).
A foreign beneficiary’s priority date must be “current” in order to submit an application to adjust status. Form I-797 records the official priority date; however, it is the visa bulletin for a given month that provides the cut-off dates that determine which priority dates are current. This document, published monthly, can be found on the U.S. Bureau of Consular Affairs website. It is very important to understand that, while the visa bulletin is published before the month it refers to, the application may not arrive to USCIS even a day in advance of the month for which the priority date is current. Suppose a priority date will be current in November but it is not current in October. If the USCIS receives the application for adjustment of status on October 31, the application fee will be processed and the application will be denied on the grounds that the priority date was not current. Even if a mistake occurs and the USCIS officer accidentally approves it, the possibility exists that once the mistake is discovered, even years later, the green card may be revoked.
Determining exactly what it means for a priority date to be “current” can be a confusing process. The priority date must be BEFORE the cut-off date listed on the visa bulletin for it to be considered current. A “C” on the visa bulletin means that all priority dates for that country and category are current. A “U” stands for “unavailable” and means there are no more visas left for that year for that category. As an example, let us assume the priority date of a foreign beneficiary from India who applied for an EB3 is September 1, 2003. The February 2014 visa bulletin is published with a date of September 1, 2003 for those from India applying under the third preference employment-based category. Would this person be safe filing the I-485 on February 1, 2014? No, because the priority date of the foreign beneficiary is not BEFORE the date listed on the visa bulletin. Let us say, instead, that the priority date of the foreign beneficiary from India applying under the third preference employment-based visa is August 31, 2003. Would this person be safe filing the I-485 on February 1, 2014? Yes, but not a day before. In this case, the labor certification application needed to file the I-140 for this foreign beneficiary was received on August 31, 2003 and there was a ten and a half year wait until the foreign beneficiary was able to file the application for adjustment of status.
Sometimes the cut-off date listed in the visa bulletin will “retrogress.” That is, one month the cut-off date for a particular chargeability area and visa type may be July 8, 2006. The following month, the cut-off date for the same area and visa type may be June 1, 2006. The date has moved backward instead of progressing forward as it typically does. This is called visa retrogression. In order for an immigrant visa to be issued, there must be one available both at the time the application for adjustment of status was filed and at the time of adjudication. Sometimes, when priority dates become current, more people apply than there are visas allocated for that month in that particular area and visa type. What results is either the cut-off date stops progressing or it retrogresses. This happens more commonly towards the end of a fiscal year when the annual limit has been met. If the cut-off date retrogresses the foreign beneficiary will have to wait for his or her priority date to become current again before filing the application to adjust status. If a foreign beneficiary submits an application while the priority date is current, but when a USCIS adjudicator processes it the cut-off dates have retrogressed, that application will be held until the foreign beneficiary’s priority date becomes current again. If there are no visa numbers available, the USCIS officer cannot issue a visa, even if there were visa numbers available when the application was filed.
Generally speaking, permanent residents may sponsor certain family members for green cards, but only immediate family members of U.S. citizens are not subject to priority date and the worldwide limit of 675,000. When the petitioner is a U.S. citizen, an “immediate family member” is defined as one of the following:
Subject to family-based preference categories and the worldwide level, U.S. citizens may also sponsor unmarried children over the age of 21, married children of any age, and brothers and sisters (provided the U.S. citizen is over the age of 21). Equally subject to preference categories and the worldwide level, permanent residents may only sponsor his or her spouse and unmarried children of any age. All of these individuals are subject to a priority date based on the date of filing of the “Petition for Alien Relative” (Form I-130). Country of origin limits also apply and in some cases the waiting time for a priority date to become current can be twenty years or more.
However, a foreign beneficiary who is already married and/or has children (under the age of 21) may include them in an employment-based immigrant petition. In this case the foreign beneficiary is known as the “principal” or “qualifying” beneficiary and his or her spouse and children are known as “derivative” beneficiaries. According to Section 203(d) of the Immigration and Nationality Act, “a spouse or child…, if not otherwise entitled to an immigrant status… [is] entitled to the same status, and the same order of consideration…, if accompanying or following to join, the spouse or parent.” This means that no separate petition is required to apply for adjustment of status and that the family members are subject to the same priority date as the principal beneficiary. The application for permanent residency for a derivative beneficiary is submitted concurrent with the application for the principal beneficiary. An “accompanying” derivative beneficiary enters the United States as legal permanent resident along with the principal beneficiary, or within six months of the principal beneficiary’s entry into the United States as legal permanent resident. Beyond that six month period, the derivative beneficiary may “follow to join” and still be granted legal permanent residency based upon derivative status without having to file a separate petition; however, this determination is largely left to the discretion of the USCIS officer. While the derivative beneficiary is not subject to a separate priority date, the visas granted to these beneficiaries will count against the preference category under which the principal beneficiary became qualified for permanent residency.
The concept of “cross-chargeability” is applicable in the case of employment-based immigrant visas and derivative beneficiaries. A priority date is affected by three factors. The first is the date of filing of the immigrant petition which determines the priority date. The second and third are based on visa availability. Only a certain number of visas may be issued or “charged” to each visa category and each area of the world. These world areas, or “chargeability areas,” are usually countries and are all lumped into a single category except for China, India, Mexico and the Philippines. The one chargeability area that does not constitute an entire country is China. Only mainland China is set apart, whereas Hong Kong and Taiwan are lumped in with the rest of the world. The availability of a visa for a foreign beneficiary will depend on the chargeability area in which he or she was born. This is determined by country of birth, not currently nationality. Therefore, the priority date of a foreign beneficiary born in India, but currently a citizen of Great Britain will still be subject to the cut-off dates for India.
“Cross-chargeability” can be useful when a principal beneficiary and his or her spouse (filing under derivative status) are from different chargeability areas. Let’s say the principal beneficiary was born in Malaysia and his or her spouse was born in India. The principal beneficiary’s priority date is current, but the spouse’s priority date is not. Generally, when a visa is approved that visa number is counted against the principal beneficiary’s qualifying employment-based preference, but against the area of chargeability of the person to whom the visa is issued. In this case, the principal beneficiary’s area of chargeability has available visa numbers but the derivative beneficiary’s area of chargeability does not. Without the benefit of cross-chargeability the spouse would not be able to receive a green card. As this has the potential to separate the family, Section 202 of the INA allows for the spouse to be charged with the principal beneficiary’s area of chargeability. In this way, the married couple is not separated and neither beneficiary has to endure a long period of waiting for a priority date to become current. While the INA does not address the reverse situation (the principal beneficiary using his or her spouse’s area of chargeability), several petitions have been successful in this strategy. However, be aware that this reverse situation is only possible because the Department of State has interpreted the law this way for consular processing. Additionally, the language of the law suggests the option of cross-chargeability; it does not require it. The decision ultimately rests with the USCIS adjudicator, so it is important to craft a convincing explanation of why cross-chargeability applies. It should also be noted that while a child may use the area of chargeability of a parent, the child’s country of birth will not offer cross-chargeability benefits to his or her parents.
Three of the most commonly associated employment-based visa classifications are the first preference for “aliens of extraordinary ability”(EB1A), first preference for “outstanding professors and researchers” (EB1B) and second-preference “national interest waivers” (EB2-NIW). While there are several similarities and differences among these visas, the special terms used for each can be especially confusing. The “alien of extraordinary ability” definition establishes this visa classification as reserved for the foreign beneficiary with the most impressive qualifications and achievements
The Immigration and Nationality Act (INA) that first created the five employment-based preference categories requires the claim of “extraordinary ability” to be demonstrated through documentation of the following:
In order to meet this threshold, the petitioner must produce evidence of either a one-time major, international award or meet at least three of the ten criteria provided by the INA. When evaluating these criteria, the USCIS officer must always view the evidence in light of whether they support these two qualifications. The other factor considered throughout the adjudication process is the foreign beneficiary’s claims regarding his or her capabilities. The “alien of extraordinary ability” definition can be found in the regulatory code:
An “alien of extraordinary ability” is one of the few individuals at the very top of his or her field of expertise.
Therefore, in the final merits determination stage of the evidence evaluation, the USCIS adjudicator will decide if the submitted evidence successfully proves that the foreign beneficiary is one of the few at the very top of his or her field. This must be demonstrated through “sustained national or international acclaim” and recognition of the foreign beneficiary’s accomplishments by the academic community. In composing the petition letter, it is very important to frame the evidence presentation according to this standard. Other considerations include what constitutes appropriate evidence, how the criteria are judged, and what a persuasive recommendation letter looks like.
Following the 2010 decision regarding the Kazarian case by the U.S. Ninth Circuit Court, the USCIS issued a policy memo in which the Adjudicator’s Field Manual was modified to reflect their interpretation of this ruling. While this case dealt specifically with an EB1A petition, the revision of the field manual has had a significant effect on the adjudication standard for both first and second preferences of employment-based visa petitions.
The Adjudicator’s Field Manual currently instructs USCIS officers to perform a two-part analysis of the evidence submitted to establish “extraordinary ability” by demonstrating “sustained national or international acclaim” and recognition of the foreign beneficiary’s accomplishments as outlined in regulatory law (8 CFR §204.5(h)(2)). The first stage is explained as an objective evaluation of the evidence to determine if it meets the regulatory criteria. For example, has evidence for a major, one-time international award or at least three of the ten criteria been submitted? Or, has the petitioner failed to meet this initial threshold? The second stage of this two-part analysis is to evaluate the submitted evidence to determine if it is sufficient to prove “extraordinary ability.” This second phase is often referred to as the “final merits determination” part of the adjudication process.
Unlike the sparse directions established in the policy memo for the first stage of evaluating an “exceptional ability” petition, the instructions for the first two categories of first preference employment-based visas include notes to guide the adjudication officer in his or her decision.
The instructions for this first stage begin with a note that evidence may be relevant to multiple criteria defined under (8 CFR §204.5(h)(2)). Each criterion offers one to two directives as follows:
If the petitioner can demonstrate that these criteria are not applicable to the foreign beneficiary’s occupation, comparable evidence may be submitted. USCIS officers should consider whether this is indeed the case and if the evidence submitted is in fact comparable and probative. General assertions and witness letters are not sufficient. One example is that of an Olympic coach whose athlete wins a medal while under the foreign beneficiary’s guidance. This may be an appropriate substitution for the fifth criterion. There is no comparable evidence that may be substituted for a one-time major, international award.
Objectively meeting the required criteria does not automatically mean that the foreign beneficiary has successfully proven possession of “extraordinary ability.” Once the first part of the analysis has been completed, the evidence should be evaluated holistically to determine if it proves the claim that the foreign beneficiary has risen to the very top of his or her field, as confirmed by “sustained national or international acclaim” and recognition of achievements in the field. For example, articles authored by the foreign beneficiary and published in peer-reviewed scholarly journals should be accepted in fulfillment of the sixth criterion. However, if the articles have had no apparent impact on the field, the qualitative analysis of the second stage may find that the articles are not indicative of “extraordinary ability.”
The instructions direct USCIS officers to give specific reasons in their denials, explaining why the application was not approved. While no other specific guidance is given to steer adjudicators’ qualitative analysis, the directions discuss what “sustained acclaim” means. The definition of “sustained,” according to Black’s Law Dictionary associates a long duration of time with the meaning. However, while the acclaim must be maintained, USCIS does not enforce age requirements. The foreign beneficiary may be young, but still capable of demonstrating sustained acclaim. On the other hand, if the foreign beneficiary achieved acclaim some time ago, the USCIS officer should determine whether or not the acclaim has been maintained.
The implications of this revision to the Adjudicator’s Field Manual are two-fold. First, an application for first preference employment-based visa under the “extraordinary ability” category (EB1A) needs to address this two-step adjudication process in the petition letter. The evidence should be enumerated according to the regulatory criteria and then explained in terms of their quality and relevance. The second implication is that, despite the intention to make the adjudication standard more uniform, the lack of explicit directions for the second stage continues to give USCIS officers ample latitude in the decision-making process. This can make it difficult for the petitioner to anticipate possible problems with the petition.
Section 203(b)(1) of the Immigration and Nationality Act (INA) sets aside the first preference employment-based immigrant visa classification (EB1) for “priority workers.” This preference is divided into three categories: foreign beneficiaries of “extraordinary ability,” “outstanding professors and researchers” and the “multinational manager or executive.” The first category (EB1A) is the most rigorous of all the employment-based immigrant visa preferences. It is reserved for those foreign beneficiaries who can demonstrate “extraordinary ability” in their fields of expertise. Statutory law defines three conditions for EB1A eligibility:
The USCIS does not require the third condition to be independently substantiated. This benchmark is usually achieved by meeting the other regulatory criteria. The first condition, however, is the most difficult to prove. Evidence submitted to document this condition must always be framed in view of the definition of “extraordinary ability” established by regulatory law (8 CFR §204.5(h)(2)): the foreign beneficiary must be one of the few at the very top of his or her field of expertise. The claim of “extraordinary ability” is supported with documentation that demonstrates “sustained national or international acclaim” and recognition of the foreign beneficiary’s accomplishments. A guideline of acceptable documentation for EB1A eligibility in support of these claims is provided in Section 204.5(h)(3) of the regulatory code. The first option is for the petition to include evidence that the foreign beneficiary has received one “major, internationally recognized award,” such as the Nobel Peace or Pulitzer Prizes. If this cannot be produced, the alternative route for EB1A eligibility is to provide documentation for at least three of the following ten criteria:
Foreign beneficiaries who are approved for this employment-based immigrant visa are among the most highly regarded in their field. Intrinsically this means that there are few, if any, competitors for job and, therefore, PERM labor certification is not required for EB1A eligibility. Additionally, there is no requirement that the foreign beneficiary have a job offer; only that his or her intention is to work in the field of “extraordinary ability.” The advantage to this is that the EB1A may be self-petitioned and, while waiting for green card approval, the foreign beneficiary is free to switch jobs.
Following the 2010 decision regarding the Kazarian case by the U.S. Ninth Circuit Court, the USCIS issued a policy memo in which the Adjudicator’s Field Manual was modified to reflect their interpretation of this ruling. While this case dealt specifically with an EB1-A petition, the revision to the field manual has affected the adjudication standard for other first and second preference employment-based visa applications as well.
The Adjudicator’s Field Manual currently instructs USCIS officers to perform a two-part analysis of the evidence submitted to prove “exceptional ability” as outlined in regulatory law (8 CFR 204.5(k)(3)(ii)). The first stage is explained as an objective evaluation of the evidence to determine if it meets this regulatory criteria. For example, is the documentation submitted for the fifth type of evidence – membership in a professional association – proof of said membership or simply a general assertion? The second stage is an evaluation of the sum of evidence to determine if it convincingly proves “exceptional ability” as required by the criteria for the visa preference. The foreign beneficiary without an advanced degree (or its equivalent) who applies for a second preference employment-based visa on the basis of “exceptional ability,” will need to keep this two-step process in mind when crafting the petition letter, regardless of whether or not PERM labor certification is required.
While directions for the first stage in the evaluation process are detailed with specific notes for a first preference petition, the remarks for a second preference petition simply repeat the criteria as outlined in regulatory law. The only additional explanations offered are a note regarding the handling of “comparable” evidence (in lieu of the defined six criteria) and the comment that objectively meeting the required number of criteria does not automatically signify that the beneficiary has satisfied the benchmark for classification as an alien of exceptional ability.
Similarly to the instructions for first preference, there is very little provided regarding directions on how the second stage “final merits determination” should be conducted. The field manual reiterates that meeting the minimum requirements established by the regulatory criteria is not enough to demonstrate “exceptional ability.” U.S. Code states that a degree alone is not enough to prove “exceptional ability” and the U.S. Code of Federal Regulations defines “exceptional ability” as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.” It is in this second stage that the adjudication officer must evaluate the quality of the evidence to determine if the beneficiary possesses “exceptional” ability. For example, if documentation of membership in a professional association is submitted as evidence, it passes the threshold for the limited determination of the first stage; however, the final merits determination of the second stage may find it to be weak evidence because membership in the association is too common. The adjudication officer would interpret it as insufficient evidence to demonstrate that the beneficiary possesses expertise significantly above others in the field.
The implications of this revision to the Adjudicator’s Field Manual are two-fold. First, an application for second preference employment-based visa for the foreign beneficiary without an advanced degree (or its equivalent) should acknowledge this two-step analysis when presenting the evidence for “exceptional ability” in the petition letter. The second implication is that, despite the intention to make the adjudication standard more uniform, the lack of explicit directions continues to give the USCIS officer ample latitude in the decision-making process. This can make it difficult for the petitioner to anticipate possible problems with the petition.
See also: NIW, Kazarian v USCIS, Kazarian Criticism
Due to the way in which the “final merits determination” discussion has been interpreted by the United States Citizenship and Immigration Services, the 2010 Kazarian v USCIS case has proven to be somewhat controversial. Shortly after the decision was filed, the USCIS issued a policy memo which injected the two-step evaluation process into the Adjudicator’s Field Manual. In response to a request by the Administrative Appeals Office (AAO), several amicus briefs were written criticizing this implementation as a misinterpretation of the decision and an improper attempt to change the regulatory framework without going through the proper channels.
A common criticism is that there had already been a failed attempt to officially clarify the language of the 1990 Immigration Act (IMMACT 1990). In 1995, the Immigration and Naturalization Service (currently the USCIS) submitted a proposal to amend the regulations on employment-based immigrant visas. This proposed rule suggested several changes, including more explicitly defined criteria for the employment-based preference categories. The intention was to clarify some of the criteria which the Service deemed vague or that petitioners tended to misinterpret. A couple of the examples cited were that simply being mentioned as a footnote in an article is not a good indication of the importance of the beneficiary’s work in his or her field and that playing a minor role in a project that impacts the national interest does not correlate to the individual contributing to the national interest. One implication of the proposed rule was that without it all a petitioner legally had to do to prove “extraordinary,” “outstanding,” or “exceptional” ability was meet the appropriate number of criteria. The general argument of the proposed rule seemed to be that the criteria established in the IMMACT 1990 were meant to provide a guideline to facilitate the process for both the petitioner and the immigration officer, but that meeting the criteria did not necessarily prove the ability of the beneficiary. While the 1995 proposed rule did not explicitly outline a two-step process for analysis, it seemed to suggest the need for a qualitative evaluation method that is not currently specified by law. There has been no attempt to amend the law regarding employment-based immigrant visas since this 1995 proposal.
The December 22, 2010 policy memo deals exclusively with evidence evaluation of first and second preference employment-based visa petitions. The purpose was to update the official Adjudicator’s Field Manual in order to ensure more consistency in the adjudication standard used by USCIS officers. The policy memo cites Kazarian v. USCIS as the motivating force behind its publication. The USCIS interprets the Ninth Circuit’s ruling as validating the AAO’s concern about the significance of the evidence submitted. The policy memo agrees with the court’s decision to have found that the concern should have been addressed in the “subsequent ‘final merits determination’” of whether the evidence successfully demonstrated the extraordinary ability of the beneficiary, rather than the “‘antecedent procedural question’” of whether the petitioner had met the base qualifications by submitting the required evidence in accordance with the established criteria. That is, USCIS recognizes the court as identifying a “two-part adjudicative approach.” The first part is a quantitative assessment to determine that all the required evidence is present and the second part is a qualitative evaluation of the petition as a whole. In this second stage, often referred to as the “final merits determination,” the USCIS officer must decide if the petitioner has successfully established the beneficiary’s abilities through a preponderance of evidence. This two-part approach is outlined for the first and second preference categories that relate to the “alien of extraordinary ability,” the “outstanding professor or researcher,” and the “alien of exceptional ability.” The policy memo states that approaching the evaluation of petitions in this manner will eliminate the “piecemeal” approach of considering each piece of evidence independently and will shift the analysis to the end of the process when all the evidence can be judged as a whole.
Several criticisms of the USCIS’ implementation of the Kazarian decision explain the shortcomings of this approach to adjudication. The USCIS interpreted the case in a vacuum with seemingly no consideration for other appellate decisions. This is problematic because the Kazarian case is the only one that identifies a two-step evaluation of evidence, something which is not provided for in the law. Any changes to the regulatory framework should either not substantially revise the law or be established through an official amendment. Considering that the 1995 Proposed Rule, the last attempt to augment the criteria in a similar way, was not approved, it is considered inappropriate to make such changes through a policy memo.
As there is no established provision in the law for a “final merits” second stage in the adjudication process, only an initial qualitative review should be necessary to evaluate the significance and integrity of the evidence. The criticism is that in requiring adjudication officers to follow this two-step process, the authority of the USCIS is undermined. The criteria established in the law are treated as a simple checklist to qualify for a visa, but are subordinated to ill-defined guidelines intended to measure the value of the evidence. The policy memo is much more explicit about how to conduct the first-stage of this two-pronged evaluation. Directions concerning the second stage are limited to a call for adjudication officers to consider the quality of the evidence and to determine if it was extensive enough to support the petitioner’s claims. Specific guidelines explaining how to do this are not provided. The only additional instruction is to be specific regarding reasons for finding the evidence wanting and not to simply give a general explanation of a denial.
Regardless of the criticism surrounding this implementation of an appellate decision, it is essential to keep it in mind when preparing a petition. To date this two-step adjudication process has not legally been found to be a misinterpretation of case law and, therefore, has remained the method by which adjudication officers evaluate first and second preference employment-based immigrant visas. When writing the petition letter, it is essential to frame the presentation of evidence according to the quantitative evaluation and “final merits determination.”
See also:
Dr. Poghos Kazarian, a theoretical physicist, originally filed a petition with the USCIS California Service Center for an employment-based immigrant visa to qualify as an alien of extraordinary ability (EB1-A). His petition was denied, so he sought to overturn the decision through the appellate division of the USCIS, the Administrative Appeals Office (AAO). When the AAO upheld the denial, Kazarian sought further appeal through the Federal District Court, followed by the U.S. Ninth Circuit Court of Appeals. In each case his petition denial was upheld; however, the 2010 findings of the Ninth Circuit Court introduced a controversial addition to the USCIS adjudicator field manual that has had a profound impact on the manner in which USCIS evaluates certain employment-based immigrant visa petitions.
Dr. Kazarian received his Ph.D. from Yerevan State University in Armenia. There, he had conducted research that successfully addressed a 20-year-old problem in gravitation theory and had reviewed graduate level work of students in the department. While in the United States, he had volunteered at Glendale Community College (GCC) in various capacities, including tutor, adjunct and lecturer. As evidence, Dr. Kazarian submitted several enthusiastic reference letters from professors and colleagues at Yerevan State University, Glendale Community College and California Institute of Technology. He self-published a textbook and authored six articles in Astrophysics. He presented a lecture series at Glendale Community College and four papers at national and international conferences. He also submitted two articles in which the authors acknowledged the value of his work.
The United States Code allows the court to overturn decisions by agencies such as the United States Citizenship and Immigration Services only if they are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” If there is an error in a decision made by the USCIS, the court should determine if there was any harm in the error. The AAO determined that Dr. Kazarian did not meet any of the ten criteria, of which four were in question. The court found that the AAO had erred in two of those four situations.
The AAO determined that Dr. Kazarian’s articles did not constitute evidence of “extraordinary ability.” Their contention was that they demonstrated no “sustained acclaim” by others in the field and without such citation by others the evidence did not meet the regulatory standard. The court found this to be an incorrect interpretation of the law, stating that there was no provision calling for the publications to reflect reactions by others in the field. Additionally, the court stated that neither the USCIS nor the AAO may independently add requirements to those set forth in the U.S. Code of Federal Regulations (CFR). At that point, further commentary was offered in which the term “final merits determination” was first used in the document to discuss what has since become known as the two-part evaluation of the evidence. The court determined that while submission of the published articles did in fact meet the regulatory requirement, a “final merits determination” may very well have shown that the submitted evidence did not demonstrate that the beneficiary was at the very top of his field. This analysis identifies two stages in the evaluation process: a quantitative accounting to determine if sufficient evidence has been submitted and a qualitative examination of the evidence to determine if the submitted evidence proves that the foreign beneficiary possesses “extraordinary ability” by being at the very top of his or her field.
Furthermore, reviewing graduate level work at Dr. Kazarian’s own university was not found to be persuasive evidence by the AAO and was not accepted as qualifying evidence to meet the threshold established in the regulations. The court determined that this was an erroneous interpretation of the law, stating that there was no provision in the regulations requiring the reviewed work to be carried out at an unaffiliated university. Additional commentary again states that a “final merits determination” may have found the evidence insufficient but that USCIS may not independently establish new regulation guidelines.
The two findings of the AAO that the court upheld involved evidence submitted to fulfill the fifth and seventh categories of evidence as defined by 8 C.F.R. § 204.5(h)(3). Dr. Kazarian’s contributions to his field were determined by the AAO not to be of major significance and therefore did not meet the criterion. The AAO also found that none of Dr. Kazarian’s lecture or presentation activities constituted displays at artistic exhibitions or showcases. The court agreed with these two findings and determined that they were not made arbitrarily or capriciously. Despite the errors committed by the AAO, the court found the original decision to be harmless, because the regulations clearly stipulate that three of the ten criteria must be met and ultimately Dr. Kazarian had failed to do so, having only met two out of the ten criteria.
The court acknowledged that Dr. Kazarian appeared to be a well-respected researcher in his field and deemed him an excellent candidate for the second-preference employment-based visa for aliens of “exceptional ability.” Concurring opinion called the outcome of this case an “injustice” and acknowledged the value of Dr. Kazarian’s contributions to the country. It was also noted that Dr. Kazarian’s former attorney, who had originally counseled him to apply via the first-preference “extraordinary ability” category, had been indefinitely suspended years before.