Two-Part Approach (the Kazarian case) for EB-1A (Alien of Extraordinary Ability)
Introduction
A USCIS document issued in August, 2010 requires two-step analysis for EB-1A (Alien of Extraordinary Ability), EB-1B (Outstanding Researchers and Professors) and EB-2 (Foreign Nationals of Exceptional Ability).
Two Part Approach
The newest guidelines state that USCIS adjudicators should evaluate EB-1A, EB-1B, and EB-2 petitions in a two-part approach.
Part 1: Calculating Prongs Satisfied
The USCIS adjudicator must decide whether a petitioner has presented enough documentation to meet the requirements for the immigration classification he or she is pursuing as mandated by the USCIS rules.
Consider EB-1A For Example: A petition for a EB-1A extraordinary ability non-resident must include evidence of receiving a major internationally acknowledged award, such as a Nobel Prize, or include at least three types of evidence from among the 10 types defined in the rules. When determining whether the petitioner has received a major award (quite uncommon) or has proven at least three of the types of evidence listed, adjudicators examine the evidence given to determine how many of the evidentiary prongs have been fulfilled. After determining that at least three evidentiary prongs or a major evidentiary prong has been fulfilled, the USCIS adjudicator can proceed to the second step.
Part 2: Totality test
The USCIS adjudicator must examine all of the presented documentation in its entirety in order to make a determination as to whether the non-resident meets the mandatory level of expertise for the category. In this phase, the adjudicator examines all the evidence to determine if, cumulatively, it proves by a preponderance of the evidence that the I-140 petitioner fulfills the general requirements for the category.
Consider EB-1A For Example: An adjudicator for an EB-1A case has to determine whether the petitioner is at the very top of his or her area of expertise. When making this determination, the quality of the evidence, such as whether the judging obligations were internal, and whether the academic articles (if relevant to the occupation) are cited, are appropriate considerations for the final decision.
