EB-1A Challenge Extraordinaire: How the Tables Were Turned on a Table Tennis ChampionPosted on Tuesday, December 11, 2012
Securing permanent residence through the EB-1A employment-based preference category continues to be highly sought-after because it enables foreign nationals to self-petition without any employer involvement. In addition, EB-1 visa numbers have always been immediately available to those seeking permanent residence in this category. For those who are talented enough to qualify, irrespective of their country of origin, a Green Card may be obtained in less than a year.
Of the several employment-based paths to permanent residence, EB-1A – for those who can demonstrate extraordinary ability in the sciences, arts, education, business or athletics – is perhaps the most prestigious and competitive. The foreign national must provide concrete evidence showing that he is at the top of his field of endeavor, both by meeting certain specific criteria and by meeting an overall standard of ranking within the top few percent in the field.
While it has always been challenging to satisfy the EB-1A requirements, a 2010 court decision in the case of Kazarian v. USCIS made it considerably more difficult. Recently, a Federal District Court in New York upheld a very strict interpretation of the Kazarian standard. This new decision provides some helpful insight into what specifically an individual must be able to prove in order to build a successful EB-1A case.
Since Kazarian, all self-petitioners in the EB-1A category must demonstrate that they have either won a major internationally-recognized award, or that they satisfy at least three of ten other eligibility criteria. In addition, all the evidence taken together must show that they are at the very top of their field. This overall assessment is called a “final merits determination”, and it has since become a barrier to approval in many cases.
Afshin Noroozi, an Iranian table tennis player, recently discovered this in a most disappointing way. He was approved in the EB-1A category before Kazarian on the basis of an international ranking in his sport. But a group of cases, including his, was later referred to USCIS’s Fraud Detection Operations Unit. Although no fraud was found, his case was still sent back for re-adjudication “on its own merits”.
In the meantime, USCIS had issued a policy memorandum based on Kazarian, instructing adjudicators on how to apply the final merits standard. Under these stricter guidelines, USCIS concluded that Noroozi’s case should never have been approved. Their Notice of Intent to Revoke did not actually mention the newly-implemented Kazarian framework, but it did state that he had failed to satisfy any of the ten criteria for EB-1A .
Noroozi then filed a second EB-1A petition using similar evidence and arguments. This case was also denied, not only for failure to meet three criteria but also for failure to pass the “final merits” evaluation. Noroozi’s appeal of this decision eventually made its way U.S. District Court in New York where, on November 14, he lost.
How did USCIS go from finding Noroozi met three criteria before Kazarian to finding that he met none afterward? Through many years of experience with EB-1A cases, we have learned that minimally meeting a criterion is not sufficient for USCIS approval. The supporting evidence must show that the foreign national satisfies each criterion at a high level.
Consider, for example, a letter of support from an expert highlighting a foreign national’s critical role for a distinguished organization. Such a letter must address every single element of the claim: establish the writer as an expert, show that the organization is distinguished, explain the beneficiary’s role and give a compelling description of why the role is critical. Repetitive evidence that a person minimally meets a criterion can actually weaken an EB-1A case.
After reviewing all of the evidence, District Court Judge Paul Engelmayer determined that Mr. Noroozi had met two of the EB-1A eligibility criteria: he was the recipient of lesser nationally or internationally recognized prizes or awards, and he belonged to associations in his field requiring outstanding achievements of their members. However, Mr. Noroozi did not establish that he met any of the other criteria applicable to his case, such as being featured in articles or other publications, judging the work of others in the field, commanding a high salary relative to others, or performing a critical role for a distinguished organization.
As for final merits, despite what Judge Engelmayer referred to as “impressive and commendable” table tennis proficiency, Mr. Noroozi still placed only 26th at the 2008 Olympics and was ranked only 284th in the world. For this reason, the judge concluded that USCIS had properly exercised its discretion in revoking his initial EB-1A visa approval and rejecting his second case.