Mark A Ivener, A Law Corporation

USCIS Ombudsman Recommends Improving Adjudication Quality for Extraordinary Ability and Other Employment-Based Adjudications

In a recent report, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman noted that stakeholders have raised concerns about consistency in adjudications of extraordinary ability and other employment-based petitions. Recent concerns have focused on the subjective nature of final merits determinations. Stakeholders report that an I-140 policy memo that USCIS issued in December 2010 has not resulted in a clearer adjudicatory standard. The Ombudsman noted that USCIS has been challenged in identifying an objective standard and application for a final merits determination, and some Immigration Services Officers (ISOs) report that the I-140 policy memo did little to change their analysis of I-140 petitions.

The Ombudsman made the following recommendations to USCIS to improve fairness, consistency, and transparency in adjudications of these petitions:

  1. Conduct formal rulemaking to clarify the regulatory standard and, if desired, explicitly incorporate a final merits determination into the regulations;
  2. In the interim, provide public guidance on the application of a final merits determination; and
  3. In the interim, provide ISOs with additional guidance and training on the proper application of the “preponderance of the evidence” standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions.

The Ombudsman gave the following reasons for these recommendations:

  • Stakeholders are concerned that the current I-140 policy memo allows for too much subjectivity for adjudicative petitions.
  • Stakeholders presented in an amicus curiae briefing to USCIS’s Administrative Appeals Office that the decision in Kazarian v. USCIS does not require USCIS to implement a two-part review as provided for in the I-140 memo, and that application of the I-140 policy memorandum has not resulted in a clearer adjudicatory standard.
  • ISOs lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability.”
  • USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination.

Additional Resources:

  • The report and recommendations (PDF).
  • The December 2010 I-140 policy memo, which the Ombudsman noted rescinded and superseded all previously published USCIS policy guidance regarding EB-1 adjudications (PDF).

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.