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The Final Merits Determination for USCIS to Evaluate an EB-1A Petition

Hi William,

I am in the process of EB1 Extraordinary Ability (EB-1A) petition. What is the "final merits determination" for USCIS to evaluate an EB-1A petition?


The U.S. Court of Appeals for the Ninth Circuit issued a decision for Mr. Kazarian's EB1  Extraordinary Ability (EB-1A) petition, concluding that USCIS should reserve any evaluation of the record evidence that otherwise meets the plain language requirements of the regulatory criteria for a separate and subsequent "final merits determination."

The two-step review articulated in Kazarian case provides a reasonable interpretation and application of the existing regulatory standard. To promote consistency, USCIS has adopted the two-step review process for cases arising both within and outside the jurisdiction of the Ninth Circuit.

Thus, the proper procedure for evaluating an EB1 Extraordinary Ability visa petition is twofold. First, USCIS will analyze the record and count the number of evidentiary criteria met, without imposing novel substantive or evidentiary requirements beyond those set forth by regulation. Second, if the petitioner submits evidence that meets at least three of the criteria, USCIS will then review the record in its totality in a final merits determination to determine if the alien is one of that small percentage of individuals who have risen to the very top of their field, has sustained national or international acclaim, and that his or her achievements have been recognized by others in the field of expertise.

At the second step, USCIS will consider not only the quantum of evidence, but also its quality, including relevance, probative value, and credibility. If the record establishes that it is more likely than not that the individual has sustained national or international acclaim and recognition in the field of expertise, and is one of that small percentage who has risen to the very top of their field of endeavor, then the petitioner has met his or her burden of proof.

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