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On August 18, 2010 the USCIS issued an interim policy memo updating the Adjudicators Field Manual in light of the Kazarian decision. On our March 5, 2010 blog post we briefly discussed the ruling in Kazarian v. USCIS. USCIS Memo
Kazarian is an important victory for the rule of law, but it is more a semantic victory than a substantive victory. As we noted in that original post Kazarian did not address important substantive law concerns. To properly understand Kazarian, and now the memo implementing that decision, one must first understand the Service's prior practice when denying EB-1 Extraordinary case, EB-1 Outstanding cases and EB-2 Exceptional case. What the Service would do: The Service would make the following argument. - The petitioner is required to present certain categories of evidence.
- That evidence must show that the beneficiary meets the adjudicatory standard.
- Each category is viewed individually and a determination is made as to whether or not the evidence submitted meets that standard.
- If the standard for that category is not met then the Service would say that probative evidence in that category was not presented.
- The case is then denied for failure to present evidence in the sufficient number of categories.
This final statement is critical because it caused the court to view the dispute as a procedural matter and not a substantive matter. The Service was saying that unless evidence meets certain standards not stated in the regulations that the evidence would not be admitted. The court said that evidence is evidence and it cannot be excluded because of its low probative value. The Court clearly thought the Service was making determinations without considering all of the evidence, and that is certainly how their pre-Kazarian denials read. The Court went on to say that if the evidence, after being admitted for consideration, did not meet the standards then the case could be denied. Substantively nothing changed. Let's look at the Kazarian case itself to see the effect of the Kazarian decision: The table below contrasts the original denial with an acceptable post decision denial. Evidentiary Category
| Evidence Presented
| Original Service Denial
| Expected Post Kazarian Service Denial
| Authorship of Scholarly Articles
| Six Articles
| No proof the articles had been cited by other researchers and therefore did not meet the regulatory definition. Therefore evidence in this category was not admitted.
| The regulations do not require evidence of citation by others.
Scholarly articles admitted but because they have not been cited by other researchers the evidence is not probative of exceptional ability.
| | Judge of the Work of Others | Dissertation Review Experience
| Did not demonstrate that the dissertation review was external to his own institution. Therefore evidence in this category was not admitted.
| The regulations do not require evidence of external review.
Dissertation review evidence is admitted but because it was not external to the beneficiary's institution it is not probative of judging the work of others. | Original Contributions of Major Significance in the Field
| Evaluations by other Scholars.
| The contributions were not major and therefore the evidence is only of contributions not major contributions. Therefore evidence in this category was not admitted.
| The regulation does state that the evidence must be of Major Significance. The contributions were not major and therefore the evidence is only of contributions not major contributions. Therefore evidence in this category was not admitted. [Note however that the Service could also admit the evidence and then say that it does not demonstrate Major Significance and is therefore not probative.]
| Display of the Alien's Work at Artistic Exhibitions or Showcases
| Self published text book. lectures and conference presentations.
| Activities are not displays at artistic exhibitions showcases. Therefore evidence in this category was not admitted.
| Kazarian does not change this. [Note: The term artistic clearly modifies the word showcase so it is hard to see how scientific presentations and authorship are even arguably probative.]
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Note that there is no substantive change. The USCIS continues to be free to impose arbitrary standards, such as a requirement that dissertation review be external to the beneficiary's institution, they simply admit it as evidence and proffer that it is not convincing.
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