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The immigration bar apparently wishes the Kazarian decision stood for something it does not stand for.
The immigration bar does its clients no favors by misreading and misapplying Kazarian. Similarly it does its clients no favors by insisting that the USCIS employs what it terms “circular reasoning.” This post will address Kazarian first and circular reasoning second. I argue that USCIS has properly implemented Kazarian. I also argue that USCIS is routinely arbitrary and capricious and needs to be challenged but that is not the same as circular reasoning. I suggest that the cause of the problem is the statutory language. Finally, I point out that DOL can eliminate much of the need to file EB-1 petitions by designating STEM occupations as Schedule “A” occupations and is obliged to do so on public policy grounds.
Kazarian
The Immigration Bar thought Kazarian would change Extraordinary Ability, Outstanding Researcher and Professor, and EB-2 NIW adjudications and continues to ignore the fact that the decision was a procedural decision not a substantive one. Don't get me wrong, I think the adjudication of these Best and Brightest petitions is seriously flawed, I just don't think Kazarian is being improperly implemented by DHS. Like my colleagues I wish that DHS would adopt a less arbitrary and capricious adjudicatory methodology, but unlike my colleagues I recognized from the day it was published that Kazarian was not going do that.
As I stated in my March 5, 2010 initial post on the subject this was a case about procedure not substance. My colleagues in the bar are quick to point to the court's statement “neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements . . .” While this is a powerful statement and reaffirmation of the rule of law, it was in context about the admissibility of evidence.
Before Kazarian the USCIS would look at each form of evidence, decide if the probative value of the evidence met the regulatory standard and if it did, admit that evidence. If the probative value of the evidence did not meet the regulatory standard the USCIS would state that it did not count and therefore it would not be admitted, in fact, USCIS treated that evidence as if it had never been submitted. By doing this all their denials were virtually identical. They would say that the petitioner failed to present evidence in the requisite number of categories. Kazarian tells USCIS that their methodology is flawed. Under Kazarian they must admit the evidence into the proceedings and then make a judgment as to its probative value. This does not change the adjudicatory standards, it just changes how the opinion is written. It is a win for the procedural rule of law but it does not and will not change the outcome of any case, most unfortunately this includes Dr. Kazarian's.
Circular Reasoning
Many in the bar suggest that the USCIS is engaged in a flawed pattern of circular reasoning that perpetuates denials and that the reasoning is nearly impossible to overcome. While I agree that the adjudications are both unjust and contrary to sound public policy, it is because they are arbitrary and capricious, not because they are fundamentally flawed as circular. What my colleagues argue is that the USCIS requires evidence that is in and of itself extraordinary and therefore the only way to prove someone is extraordinary is if you've already proved them extraordinary. But this is not what the regulations do, in actuality USCIS employs very simple deductive reasoning. The USCIS says that someone who is extraordinary will be able to present evidence that is indicative of extraordinary ability and absent that evidence they cannot be considered extraordinary. And that is a perfectly legitimate interpretation of the statute and regulations.
It can be hard to make this clear so I will use an example from horse racing, after all the Kentucky Derby was just this past weekend. Let's look at three horses. Horse “A” has started and won four stakes races but placed third in the Derby. Horse “B” has started four and only one one race, but the race it won was the Derby. Horse “C” has started 8 races and placed in the top three in each including a second in the Derby. But the wins were in minor races at minor tracks against uncompetitive horses.
The USCIS would say that “C” is remarkable, but not extraordinary. They of course expect that extraordinary horses do well racing, and the fact that horse “C” has won, placed or showed in eight is deserving of some recognition. However, since they were not difficult races to win they don't mean much and the second in the Derby is not enough to draw a contrary conclusion.
The USCIS would say that Horse “B” is extraordinary because it won a major title. Note that by regulation this is a case where one data point is enough.
The USCIS would have a much harder time with horse “A.” The horse is a demonstrated winner, but it has not won any significant titles such as the Kentucky Derby, the Preakness or the Belmont stakes. Still the stakes races were important and the competition was strong. Horse “A” is like the vast majority of our clients. It has won some races but not the big one. It might be extraordinary, but USCIS won't approve a petition on the “it's best days are ahead of it” argument. USCIS must now look at the less prestigous stakes races themselves to see if they support an extraordinary finding. If they were minor races against minor competitors then USCIS is likely to say that while an extraordinary horse would probably also win those races, they are not indicative of the horse's ability. And it is with that statement that my colleagues would accuse the Service of circularity. In fact there is nothing circular about it. USCIS is simply sayinig that a good horse beating bad horses is not extraordinary. The USCIS could just as easily look at the horse's history and find that horse “A” won the Santa Anita and other important races and conclude that while the horse did not win one of the big races, the races it did win were significant and what would be expected of an extraordinary horse. The USCIS could do this with other characteristics as well. For example they might look at bloodlines.
This whole exercise is one of inference. It is quite reasonable for the USCIS to say that a person with extraordinary ability would have at least some of the characteristics normal to people with extraordinary ability in their field of endeavor. Where USCIS fails is that they continue to make arbitrary and capricious decisions.
Arbitrary and Capricious
As described above, I believe the USCIS does not engage in a pattern of circular reasoning. I do however believe that many of their decisions, especially coming from the AAO, are in fact arbitrary and capricious. USCIS acts in an arbitrary and capricious manner when there is no sound basis in fact or law for the decision. They are not permitted to assume, nor go on their gut, nor utilize personal experience. They must be able to point to objectively recognizable factors when deciding a case. Let's look at a common issue.
Judging the work of others is a category of activity or achievement which the Service by regulation finds indicative of extraordinary or outstanding ability. If the petitioner can prove that the beneficiary has judged the work of others, then they have satisfied that category. Unfortunately, the AAO and hence USCIS has decided, for no apparent reason, that peer review of journal articles is too routine to meet this requirement. This is an example of the Service trying to determine in the horse racing example whether or not this was an important race based on their own opinion. It is flawed not because it is circular, but because it is not supported by fact and is therefore arbitrary and capricious and contrary to law.
The USCIS cannot point to any empirical evidence or other objective criteria to support their position that peer review of journal articles is too routine to be probative. In fact, as a matter of logic their argument makes no sense for four reasons. First, USCIS somehow thinks peer review is easy and easily available to all engaged in science. They have no basis for this conclusion. I think empirical evidence, if it exists, will show quite the opposite. I think it will show that peer review assignments are both an honor and relatively limited. Second, A publisher would be insane to choose mediocre scientists for their review assignments because by doing so they diminish the both the quality and the importance of the review. They would also be asking the world's leading scientist in a particular field to respond to peer review from someone who is clearly not their peer. That would ultimately chase away submissions from leading scientists. Third , a young scientist will usually receive the review assignments from their principal investigator (PI) who is over burdened with review requests and would like nothing more than to ask someone else in their lab to review some of those papers for them. However, no PI is going to endanger their reputation by giving peer review assignments to any but the most capable of the junior scientists. Fourth, the fact that peer review is routine amongst the beneficiaries USCIS sees is perhaps an indication of the norm for the best and the brightest and and not the norm for all who do that type of work. Perhaps the absence of such review work speaks louder than its presence. They need to measure against the population of scientist in the field, not the population of Ph.D.s or beneficiaries applying for benefits.
This fourth point brings us to another way in which the Service is arbitrary and capricious. They judge who is extraordinary by comparing them to their peers who on any objective level are also extraordinary. They never look at the whole population. Take chemists for example. It is the population of chemists they should be looking at, not the population of Ph.D. chemists. Yet they routinely look to what they perceive as norms for the population of Ph.D.s and not the population chemistry graduates. I would argue that simply having a Ph.D. makes one an extraordinary chemists. They are one of the few who has risen to the top of their field, they have a Ph.D. and are fully qualified to teach the discipline or conduct research. They could also leave the field but having not done so they are one of the few who has risen to the top.
One Last Big Flaw
Lastly, the adjudicatory methodology ignores the fact that the sum can be greater than the whole. Perhaps there is a scientist out there who is simply very good at everything she does. It can be argued that most scientists are not so gifted. That they are very good at some things and mediocre or just plain bad at others. Therefore, a scientist who is so gifted that she is very good at many things is in fact, when taken on the whole, outstanding or even extraordinary. The adjudicatory standards do not provide a path to approval for that scientist. In a sense the decision to disenfranchise those scientist is arbitrary and bad for the country. However, I cannot see a court ruling that the USCIS must find a way to approve that scientist's case. The agency, under a decision known as Chevron, is granted great deference in its work and a court would not be likely to second guess such a judgment call because it would require the court to interpret the meaning of the word extraordinary which most courts would say should be left to the agency's expertise.
Fix the Statute
Fixing the statute would solve these problems. The extraordinary ability statute requires “extensive documentation” a phrase that is just vague enough to allow the USCIS to infer the requirement that only extraordinary documentation can demonstrate extraordinary ability. Because of this, purely objective decisions are not possible, only objectively rational decisions are possible. I think a clear statement that one who holds a Ph.D. meets the requirement for extraoridinary ability is needed. A similar problem is present in the outstanding researcher category.
DOL Can Help
I would like to see congress invite all those with STEM advanced degrees to stay, job or no job, no labor certification. In the meantime the DOL can largely fix the problem by designating advanced degree STEM occupations as Schedule A occupations and eliminating the labor certification requirement. The labor certification requirement is a significant stumbling block for many STEM graduates. It is expensive, it is time consuming, it is often delayed beyond reason and most importantly it requires an employer hire a minimally qualified worker. In many cases STEM clients are in fact the most qualified and labor certification would be ineffective and damaging to the program or research. It seem obvious that the need for immigrant STEM workers is so apparent that failing to designate them as schedule "A" occupation is contrary to public policy.
Conclusions
Kazarian could have been a win for our clients but it was not. The immigration bar needs to recognize that nothing substantive changed and move on with the process of improving the law and generating just outcomes. We must wait until the proper case comes along to argue that the adjudicatory standards are arbitrary and capricious. Until then we have our work cut out for us with those borderline or horse “A” cases. Our experience proves that understanding the adjudicatory process rather than raging against it can and does yield approvals. |
