They Know It When They See It

Supreme Court Justice Potter Stewart

The US economy wants, needs, and desires the services of highly skilled and highly trained people.  To that end, Congress added special visa categories to the Immigration and Nationality Act [INA] just for such individuals.  They are the Person of Extraordinary Ability, Person of Exceptional Ability, and Outstanding Researcher and Professor categories.  These categories are reserved for individuals that are operating at a level beyond mere mortals, such as those who hold Doctor of Philosophy degrees and are conducting cutting edge research; Nobel Prize winners, and those who can hit a 100 mph fastball over the Green Monster in Fenway Park.

Shortly after Congress created these visa categories, the immigration service wrote regulations interpreting the statutes.  The US Citizenship & Immigration Service wrote regulations where they defined the kind of evidence they would accept in adjudication of this visa petition.  This evidence includes:

·      Receipt of International or Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence

·      Membership in Associations that Require Outstanding Achievements from their members;

·      Published Materials about the applicant in professional or major trade publications;

·      Evidence that the applicant has served as the judge of the work of others in his or her field;

·      Evidence of original scholarly, scientific, artistic, athletic or business related contributions of major significance;

·      Publication of scholarly articles in the field of endeavor in major trade or other media;

·      Performance in a leading or critical role for an organization that has a distinguished reputation;

·      Evidence that the applicant has commanded a high salary; and

·      Evidence of commercial success in the field of endeavor.

USCIS conducts a two-step analysis of the evidence.  First they review the evidence meets the criteria listed above.  Then, in an effort to limit the extraordinary ability visa category to the crème de la crème, CIS conducts a meta level analysis of all the evidence submitted to determine if the applicant has both a “level of expertise indicating that the individual is one of that small percentage who have risen to the very top of their field of endeavor” and that have “sustained national and international acclaim’.  Click here to read the entire regulation.

The difficulty with this two step analysis is that there is no clear test to determine what constitutes an individual who is in the small percentage that have risen to the top of their endeavor.  It is easy to determine if an applicant has the threshold evidence.  USCIS’ rules for determining who is at the top of their field are a little more enigmatic.  CIS instructs its adjudicators to “consider all of the evidence to make a final merit determination of whether or not the petitioner has, by a preponderance of the evidence, shown that the beneficiary is at a degree of expertise significantly above that ordinarily encountered.”   The difficulty with this standard is that a CIS adjudicator is probably not competent to evaluate the evidence presented.

Without clearer guidance to the CIS adjudicator (and by extension, the applicant pool), this the two-step analysis is akin to Supreme Court Justice Potter Stewart’s definition of obscenity:  I know it when I see it.   

Until recently CIS’ two-step analysis has not fared well in court.  See Muni v. INS, 891 F.Supp 440 N.D. Ill. 1995 and Grimson v. INS, 934 F.Supp 965 (N.D. Ill 1996)(INS improperly discounted the evidence of NHL Hockey Players) and Buletini v. INS, 860 F.Supp 1222 (E.D. Mish 1994)(Immigration Service improperly discounted evidence of physician).  However, CIS’ two-step analysis has recently gained traction.  In Kazarin v. USCIS, the Ninth Circuit Court of Appeals upheld the denial of an extraordinary ability visa petition for a theoretical physicist.  CIS has interpreted this decision as judicial affirmance of their analysis.   Click here to read CIS’s interim guidance memo.

Individuals contemplating filing these petitions consult immigration lawyers to discuss their options, the merits of their application and likelihood of success of a visa petition.  CIS’ new two-step analysis injects a level of arbitrariness does a dis-service to potential immigrants and by extension, the American economy.