Ombudsman Raises Concerns and Makes Official Recommendations to the USCIS after the I-140 Memo Regarding EB-1A, EB-1B and EB-2

by Victoria Chen, Esq., J.D. 01/20/2012

On December 22, 2010, the U.S. Citizenship and Immigration Services (USCIS) issued a statement that applies a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to policy regarding certain employment-based petitions files for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals. This I-140 policy memorandum provides for a two-part test to determine eligibility:

1. an evaluation of whether the petitioner provided the required evidence and

2. a final merits determination.

USCIS stated that during the first part of the test, the Immigration Security Officer (ISO) simply “determines whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for each type of evidence” and is generally not expected to consider “quality and caliber.” During part two, the final merits determination, the ISO “determines whether the evidence submitted is sufficient to determine that the beneficiary or self-petitioner meets the required high level of expertise for the immigrant classification.” The ISO must consider the quality of the evidence and if the evidence is not sufficient proof of the individual’s expertise, the ISO must articulate why.

The language of the policy memo and its implementation leave much authority to the subjective determination of the ISOs. The memo does not explain what constitutes a legitimate reason for ISOs to deny a petition during the final merits determination. While policy training materials for ISOs provide examples of what fails to meet a final merits determination, they do not provide examples of evidence that meets regulatory standard for each immigration classification. The policy memo does not explain how to apply objective standards in a final merits determination and has not had a large effect on ISOs’ evaluations of petitions. Most ISOs report that they base their judgments from experience and that their analysis of petitions has not changed. Some indicate that the memo policy was adequate and that it has helped them in making decisions and others admit that they do not have a clear understanding of how to make a final merits decision.

Many people have raised concerns about the consistency of these policy changes; they are specifically concerned about the subjective nature of the final merits determination and challenge USCIS to identify a means of determining final merits objectively. They allege that the memo has not resulted in a clearer standard for determination and there are mixed reviews from ISOs on how the policy memo has influenced their evaluation of I-140 petitions. Stakeholders are concerned that the inconsistency of the memo makes it difficult for individuals and employers to file successful petitions. The Office of the Citizenship and Immigration Services Ombudsman (Ombudsman’s Office), after conducting an independent analysis, makes three recommendations in order to improve fairness, consistency, and transparency in evaluating these employment-based petitions.

The USCIS should:

A: Conduct formal rulemaking to clarify the regulatory standard, and if desired, explicitly incorporate a final merits determination into the regulations.

The Ombudsman’s Office recommends that the USCIS conduct formal rulemaking, which would be covered by the Administrative Procedure Act (APA). The APA governs the way in which administrative agencies of the federal government propose and establish regulations. It provides the public with a notice of the proposed rulemaking, the opportunity to submit their views pertaining to the proposal, a statement of the agency’s reason and legal authority for proposing the rule, and a 30 day notice before the new rule goes into effect. The use of the APA rulemaking process would lead to an objective two part test which would help clarify the standards that ISOs use when judging petitions.

B: In the meantime, provide public guidance on the application of a final merits determination.

The USCIS needs to articulate objective factors that that ISOs should consider when conducting a final merits determination. In order to effectively and fairly apply the policy memo, ISOs need guidance that demonstrates which kinds of evidence establish whether an individual has extraordinary or exceptional ability or can be classified as an outstanding professor or teacher. Effective guidance would explain how to apply subjectivity while avoiding arbitrary or inconsistent decisions.

C: In the meantime, provide ISOs with additional guidance and training on the proper application of preponderance of the evidence standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions.

Additional training materials should clarify what constitutes as proof of extraordinary ability, outstanding professor/researcher status, and exceptional ability in order to help ISOs make consistent decisions.

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