January-February 2012

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Tips for noticed an uptick in requests for evidence (RFEs), denials, and notices of intent to deny (NOIDs), even when presenting cases that previously would have been approved without issue. The change in the adjudication process is predicated on the infamous Kazarian memo that U.S. Citizenship and Immigration Services (USCIS) issued in December 2010.1 The propriety of USCIS's Kazarian memo provides rich fodder for discussion, but that is not the subject of this practice pointer. Rather, this practice pointer is premised on the fact that the Kazarian memo rules, at least for the moment, so practitioners should adhere to that guidance. I What Does the Kazarian Memo Say, Anyway? The Kazarian memo instructs adjudicators to bifurcate the analysis of the EB-1 cases. First, the adjudicator must determine whether the beneficiary meets at least three of the 10 criteria listed at 8 CFR §204.5(h)(3) (or whether the beneficiary has achieved a "one-time achievement," meaning an internationally recognized award). If the beneficiary does indeed meet at least three of the 10 criteria, the game is not over! The adjudicator must then conduct a "final merits" determination in which he or she should review the evidence in the totality to see if it shows that the beneficiary holds a "high level of expertise." This is in contrast to the "collapsed" approach that the memo says the U.S. Court of Appeals for the Ninth Circuit rejected, with "each type of evidence being evaluated individually to determine whether the beneficiary was extraordinary." Id. at 3. 20 VOICE Presenting an BY EMILY SUMNER mmigration practitioners who have recently submitted petitions in the EB-1 classification for aliens of extraordinary ability may have EB-1 Petition to Avoid an RFE What Is the Practical Effect of the Memo? The practical effect of the memo seems to be a new rash of RFEs, NOIDS, and denials, even for cases that previously would have been approved with no issue. Now, instead of simply show- ing that a beneficiary meets at least three of the 10 criteria, the prudent practitioner must now document the prestige of the venue or media in which the beneficiary's work is highlighted or recognized. For example, in a recent decision based on Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), the Administrative Appeals Office (AAO) upheld the denial of an artist. In the fi- nal merits determination, the AAO noted that simply because the artist exhibited his work does not mean that he meets the requirements for extraordi- nary ability. The AAO stated that "it should be em- phasized that a visual artist does distinguish himself as among that small percentage who have risen to the very top of the field simply by arranging for his work to be displayed…. In this case, there is no indication that the petitioner's works have consistently been featured alongside those of artists who enjoy na- tional or international reputations, that he has regularly partici- pated in exhibitions at significant venues devoted primar- ily to the display of his work alone, or that his exhibited work has been singled out for critical acclaim beyond the local THE KAZARIAN FRAMEWORK DEMANDS A HEIGHTENED LEVEL OF ANALYSIS AND DOCUMENTATION OF THE PRESTIGE AND NOTORIETY OF THE PUBLICATIONS, VENUE, OR MEDIA IN WHICH THE BENEFICIARY'S WORK IS RECOGNIZED. ILLUSTRATION BY BRADLEY AMBURN SHUTTERSTOCK.COM

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