Kazarian v. USCIS refers to a case decided by the United States Court of Appeals for the Ninth Circuit on March 4, 2010, pertaining to a decision by United States Citizenship and Immigration Services (USCIS) on a Form I-140 EB-1 application. The decision led the USCIS to issue a policy memo (dated December 22, 2010) to change its adjudication process for EB-1 and EB-2 petitions to a "two-step review" where the first step would focus on counting pieces of evidence and the second step would be a final merits determination. The case has been cited by USCIS as well as by petitioners in hundreds of Form I-140 petitions and appeals since 2010.
Past policy and precedents The EB-1 category was introduced as part of the Immigration Act of 1990. Since that time, the Immigration and Naturalization Services (INS), and later, United States Citizenship and Immigration Services (USCIS) have worked to clarify the process for EB-1 petitions. Some key developments prior to the Kazarian case are listed below:
In 1992, James Bailey, director of the Northern Service Center of INS, noted two schools of thought for adjudicating petitions: one focused on counting lines of evidence, and the other focused on determining whether, in addition to the number of lines of evidence, the alien stood out as having high quality. Bailey sided with the latter approach. In response, Acting Associate Commissioner of Examinations Lawrence Weinig replied that the specification of lines of evidence made the petitioner's and adjudicator's life easier. However, the lines of evidence did not simply involve counting pieces of paper but also critical examination to determine whether it was satisfied. Weinig's response served as unofficial policy guidance. In 1994, in Matter of Price, the USCIS's Administrative Appeals Office (AAO) limited the USCIS' review of submitted documentation to the regulatory text and prohibited moving beyond the regulations. In 1994, in Buletini v. INS, the United States District Court for the Eastern District of Michigan held that if the petitioner satisfied the three lines of evidence, then the INS must provide specific and substantiated reasons for denying the petition. The opinion cited Weinig's 1992 letter. In 1995, the INS issued a proposed rule adding language to the EB-1 regulations noting that meeting three of the evidentiary standards was not dispositive of extraordinary ability, and the alien still bore the burden of proof. The rule received public comment but was never finalized and promulgated.
Background and case
Petitioner's background
Poghos Kazarian grew up in Armenia. He received a Ph.D in Theoretical Physics from Yerevan State University in Yerevan, Armenia in 1997. From 1997 to 2000, he remained at YSU as a Research Associate, where he specialized in non-Einsteinian theories of gravitation. From 2000 to 2004, he worked as a Physics/Math/Programming Tutor, an Adjunct Physics and Mathematics Instructor, and a Science Lecture Series speaker at Glendale Community College, California, in the United States. He was also a member of a research group at the California Institute of Technology, located close to Glendale Community College, where he worked with American theoretical physicist Kip Thorne. He also authored the self-published textbook Concepts in Physics: Classical Mechanics. He published in journals such as Astrophysics and worked on cosmogony problems posed by Victor Ambartsumian.
Kazarian's time in the United States was spent on a visitor visa (B visa) that precludes formal employment. His teaching and tutoring work were carried out in a volunteer capacity, though he did earn some income as reported on a Form 1040. Although he was listed as working at YSU till 2000, his immigration documentation shows that he had been in the United States in visitor status since October 1998.
EB-1 petition
On December 31, 2003, at the age of 34, Kazarian submitted a Form I-140 petition for EB-1 status. Kazarian's petition was filed by the lawyer George Verdin. Verdin had been disbarred from law practice in the state of Hawaii in 1999 and placed on the Executive Office for Immigration Review's List of Currently Disciplined Practitioners in 2000. Verdin's history as a lawyer would be referenced in later discussions of the appropriateness of the petition category and evidence submitted.
The petition included support for the following pieces of evidence that were used to justify eligibility for EB-1 status; at least three pieces of evidence must be matched in order to qualify for the EB-1:
Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence: A medal for high school graduation with honors by the Ministry of Education of Armenia. The petitioner included a caption stating that the medal was awarded for "success in studies, labor and for the exemplary behavior." A letter from the Dean of the Physics Department at YSU stating that the petitioner "was awarded by the Dean's Honor for Excellence in Study During 5 Years (1989 to 1994)." Selection for Marquis Who's Who. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields. Solicitation to join the American Chemical Society Solicitation to join the American Association for the Advancement of Science Membership in the New York Academy of Sciences Published materials about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation. An article, "The Young Talent from America", that the petitioner said was published in the Armenian magazine Louys, that he contended was the nation's largest weekly publication. An article about the petitioner's immigration troubles, published in an unidentified newspaper. A television interview regarding his professional activities to the Armenian National Network. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought. A letter from Professor Chubarian, the Head of the Department of Theoretical Physics at YSU stating that the petitioner was involved in teaching activities and reviewing diploma works. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field. Letters from prominent scientists at the California Institute of Technology, including Kip Thorne, as well as from Paolo Pirjanian of the Jet Propulsion Laboratory. Letters from colleagues at Glendale Community College Letters from people at YSU who knew the petitioner while he was there Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media. Published articles by the petitioners in various physics journals, such as Astrophysics A self-published book, Concepts in Physics: Classical Mechanics, with reviews by colleagues at Glendale Community College, who said the college was considering using the book as a text.
Below are the remaining types of evidence that can be considered for an EB-1 application, but that were of less relevance to the petition:
Evidence of the display of the alien's work in the field at artistic exhibitions or in showcases: The later appeal would claim that the petitioner's self-published book, community college lectures, and conference presentations met this criterion. Evidence that the alien has performed in a leading or critical role for organizations: No claims were made for this line of evidence. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field. The petitioner submitted a Form 1040 tax return for 2004 showing $4,765 in wages, but no claims were made about this being unusually high remuneration. Evidence of commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales: The later appeal would claim that the petitioner's self-published book, that would be considered by Glendale Community College as a text, would qualify due to the potential for high sales.
Denial of the petition and of the appeal
In August 2005, Kazarian's Form I-140 EB-1 petition was denied by the USCIS California Service Center. Kazarian appealed the denial. The USCIS Administrative Appeals Office (AAO) dismissed the appeal on September 28, 2006. The case as decided by the AAO is referred to as Matter of Kazarian, consistent with the USCIS' naming of appeal cases.
The AAO concurred with the reasoning offered by the California Service Center for denial, and provided additional elaboration on some points. The AAO's decision did not admit any of the lines of evidence that the petitioner had used, noting that they either did not apply or fell far short of the level needed for EB-1 status. Below is a summary of AAO's reasons for rejecting the various lines of evidence that were seriously considered:
Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence: AAO argued that the prizes were not tied to the petitioner's professional achievements but achieved at a younger age. It also noted the lack of evidence for these being indicators of significant accomplishment. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields: The AAO noted that the petitioner had not submitted evidence of membership in these organizations being exclusive, that many of them had fairly large memberships, and that one of them was not even in the petitioner's profession. Published materials about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation: The AAO noted that the copies of articles submitted did not clearly include the name of the publication, and that corroborating information for the claims of circulation were not provided. Further, one of the articles were not even about the petitioner's professional work, and no clear evidence was provided about the television appearance. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field: The AAO noted that most of the letters were by colleagues rather than unaffiliated people, and did not offer sufficiently specific examples of the impact that Kazarian's work had had. Even the review by Thorne, it noted, only placed Kazarian at the level of a "young professor at a strong, research-oriented university in the United States" and this was deemed to not meet the standard needed for the EB-1. The AAO also noted that the self-published book had no ISBN and no evidence of adoption so far, did not constitute sufficient evidence as of the time of the petition. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media: The AAO noted that Kazarian's academic output matched that expected of post-doctoral fellows, and that no evidence had been submitted to show that it was substantially above that standard.
Court case