9th Circuit Court to USCIS: No Creating and Enforcing New EB-1 Law!

In the decision handed down by the Ninth Circuit Court of Appeals on March 4, 2010, the Court confirmed that USCIS/AAO may not unilaterally impose new evidentiary requirements into established federal regulations (8 CFR).

Of course, this is good news because it should theoretically stop USCIS from creating and enforcing requirements which are not expressly noted in applicable immigration law. However, we should not expect USCIS to immediately change the way they examine evidence.

Requests for Evidence (RFEs), which are common in employment based immigration cases, commonly reach beyond what is required in the regulations. For example, the regulations ask for evidence of publication of scholarly articles. USCIS often expands this requirement by seeking evidence of not only the existence of these articles (i.e. a copy of the publication), but evidence of the research community's reaction to these articles, such as the number of citations of the applicant's work by other scholars/members.

How many citations are required? There is no clear answer. Let me share with you some language from a USCIS denial on an I-140 EB-1 case (later re-filed and approved) on the issue of citations:

"Finally, regarding the alien's authorship of scholarly books or articles the record shows that the beneficiary has written several journal publications. The record contains evidence that the beneficiary's work has been cited less than 50 times. The limited amount of citation regarding the beneficiary's work does not establish the outstanding nature of the beneficiary's publications. Please note that the very act of publishing one's research does not constitute a scholarly contribution contribution of major significance. Authorship and publication is a normal part of a researcher's duties, and there is no evidence of record that the alien's authorship has been recognized as outstanding in the field".

To help us combat the kind of "extra" requirements noted above, the 9th Circuit Court decision states:

"Nothing in the provision [of the regulation] requires a petitioner to demonstrate the research community's reaction to his published articles before those articles can be considered evidence, and neither USCIS not an AAO decision may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR..."

Does this mean that people seeking green cards as EB-1 applicants can stop worrying about how many times their publications have been cited by others? Not exactly. Notably, the Court decision also states:

"While the authors' citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence [required for approval under the EB-1A category]."

What this means is that USCIS can and will consider the number of citations (or a lack thereof) in their "final merits determination". Which means USCIS will continue to consider the availability of "extra" evidence (or a lack thereof).

The EB-1A petition in question was ultimately denied. Further, the concurring opinion (found at the end of the decision) blames prior counsel for not advising the applicant to file under a less demanding immigrant visa category (EB-2).

While the 9th Circuit Court decision is clearly positive for applicants and immigration practitioners, as USCIS was called out for trying to improperly impose new law, applicants are cautioned to be overly optimistic about the practical impact of the Court's decision.

The fact is, in order for USCIS to determine if the applicant is deserving of approval (regardless of the visa category), they will evaluate the significance of the evidence being provided. In order to do so, the USCIS will continue to rely on questions developed over years of looking at similar cases. For example, you can count on USCIS wanting not only copies of publications written by the author, but evidence confirming the significance of the same, which may include evidence of citing articles or the nature of the publications themselves.

The problem arises when the USCIS reaches too far by asking for additional evidence and then determining the lack of the same allows them to completely ignore the existence of the publications. We hope the Court's decision encourages USCIS to use RFEs to help clarify the significance of the applicant's accomplishments, not to deny cases based on lack of additional evidence not required by the regulations.

A final point. The Court's decision, particularly the concurring opinion which raises the issue of prior counsel, underscores the importance of developing a good immigration strategy from the outset. Too often, we see people wasting valuable time and money on a long-shot, only they didn't know it was a long-shot.