In view of a backlog in visa availability and very slow progress in the visa bulletin, as well as continuing high unemployment, which makes securing labor certification difficult, more and more foreign nationals are attempting to obtain permanent residency in the U.S. through the EB-1 category. The EB-1 category covers three subtypes of immigration classifications: EB-11, aliens with extraordinary ability; EB-12, outstanding professors or researchers; and EB-13, multinational executives or managers. In general, the EB-1 category provides a dramatically faster path to permanent residency than other employment-based categories, providing a substantial benefit to individuals who qualify in this category.
United States Citizenship and Immigration Services “USCIS” also is aware of the increasing popularity of this category. As a result, over the past two years, USCIS has greatly increased its scrutiny of immigrant visa petitions filed in the EB-1 category. According to information released by USCIS, in 2010 and 2011, 36% of petitions filed in the EB-11 category were denied. Additionally, the percentage of cases receiving substantial Requests for Evidence has increased greatly from prior years.
USCIS’s interpretation and application of a 2010 9th Circuit Court of Appeals decision, Kazarian v. USCIS, is a significant reason why so many petitions in the EB-11 category receive Requests for Evidence and why many eventually are denied.. Following the Kazarian decision, USCIS published a policy memorandum which, according to USCIS, applies the court’s decision and analysis. However, the policy memorandum arguably distorts the court’s decision. This USCIS policy memorandum marks a change in how USCIS interprets and applies the regulations pertaining to EB-11 and EB-12 petitions (as well as EB-2, “exceptional ability” immigrant visa petitions).
The USCIS policy memorandum directs officers to take the following steps when adjudicating an EB-11, EB-12, or EB-2 immigrant visa petition:
(1)Determine whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for each type of evidence listed at 8 CFR 204.5(h)
(2) Determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the extraordinary ability immigrant classification during a final merits determination.
Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions, Police Memorandum, United States Citizenship and Immigration Services, August 18, 2010, available at: www.uscis.gov.
This two-step analysis seemingly is not required by either the regulations or the Kazarian decision itself. Nevertheless, this analysis is now required by USCIS, and the petitioner must be able to satisfy both parts of the analysis in order to prevail on the immigrant visa petition.
As a result of this new interpretation of the regulations, it has become increasingly important for the petitioner to present sufficient evidence of his or her achievements. In addition, it has become vital to include with the petition sophisticated legal analysis, identifying how the specific documents included satisfy USCIS’s new criteria.
Unfortunately, the U.S. economy still remains down and unemployment remains high. These factors mean that labor certification is difficult to secure, because many “qualified U.S. workers” may be available for jobs that are the subject of labor certification applications. In addition, the visa backlog continues to remain a problem, and looks to stay that way for the near future. Accordingly, the EB-1 category remains an important option for many talented professionals. Individuals seeking permanent residency in the U.S. should not avoid this visa category because of the increased scrutiny USCIS is giving it. Nevertheless, they should understand USCIS’s new requirements, and obtain the assistance of an attorney who understands them as well.