Understanding the EB-1A Adjudication Process

What happens during the EB-1A adjudication process?

Is it true that my petition's fate depends on the USCIS officers who evaluate it?

How do the USCIS officers evaluate an EB-1A petition?

If these are some of the many questions that have kept you awake at night ever since you decided to file an EB-1A petition, read on.

We went down the USCIS rabbit hole of information, spent a week down there, and are finally here with everything you need to know about the EB-1A two-part adjudication process. And here it is.

How Did The Two-Part Adjudication Process Come Into Practice?

Before we address the elephant in the room, let's take a peek into the history of the two-part adjudication method.

Everything began when Poghos Kazarian, an Armenian physicist, filed his EB-1A petition in 2003. He filed an appeal in USCIS Administrative Appeals Office (AAO) when his petition was rejected in 2005. AAO dismissed his appeal in 2006 upon discovering that he didn't meet the regulatory criteria. Kazarian didn't succumb but filed a complaint in the United States District Court for the Central District of California and later in the United States Court of Appeals for the Ninth Circuit when the district court rejected it. Even though Kazarian couldn't win the case, a significant revision happened in the EB-1A adjudication process.

How did it happen? The Ninth Circuit found that AAO made a mistake by evaluating only 2 out of the three mandatory evidence criteria in Kazarian's case. This fault brought forward the need for revising the policy memorandum and gave birth to the 2-step adjudication approach on December 22, 2010. However, it didn't make much difference to Kazaraian's case as he had to meet at least 3 out of 10 eligibility criteria.

What are the processes involved in EB-1 A adjudication process?

The adjudication process involves two steps, and the petitioner should clear both steps to be regarded as "extraordinary." Here are the two steps:

Step 1 of the EB-1A Adjudication Process

During the first step of the EB-1A adjudication process, the USCIS officer assesses the quality and caliber of the evidence to ensure you meet the regulatory criteria. The evidence can either be prestigious awards you have won or proof that you fulfill at least 3 out of 10 eligibility criteria.

It is an objective evaluation that follows the rule of 'preponderance of evidence'. That means:

1. The candidate's extraordinary merit is not assessed in this step.(Objective evaluation)

2. The evidence submitted should have more than a 50% chance of being true(the rule of the preponderance of evidence)

To straighten this out further, let's use an example. Suppose one of the pieces of evidence you submitted is that you've judged the work of others. In the initial stage, the USCIS officers only gauge the quality and caliber of your evidence to be used as 1 of the three pieces of evidence you submitted. They don’t delve into the scope of the judging responsibility at this stage. In other words, the final merits determination doesn't happen at this stage.

Here's how the USCIS officers evaluate whether you meet the regulatory criteria for an EB-1A petition initially:

• If you are an international or national award recipient, the officers look into whether you've been able to sustain the acclaim in your field and would continue contributing to your area of expertise once you get a green card.

• If you furnish evidence to prove that:

1. You are a recipient of lesser-known national or international accolades; the criteria for the award, the number of nominees, and the national or international importance of the award are considered.

2. You are a member of associations that require its members to be top in their field, the selection criteria of the association members are evaluated. The officers assess if you've been selected after being judged by experts in your field based on your achievements.

3. You have published material about yourself in journals, trade publications, or major media; first, they confirm if the published material is about you and your work. Then, they determine the significance of the journal, trade publication, or media using the date of publication, target audience, title, and author.

4. You have judged the work of others, either individually or as a part of a panel; the officers determine if the judging responsibilities aligns with your field of expertise. They also check if you completed the task.

5. You have original contributions in your respective field, the significance and authenticity of your work is evaluated. Letters of endorsement play a major role in establishing that your contributions are invaluable.

6. You have scholarly works in journals, trade publications, or major media; they ensure your contributions are original and determine the impact factor of the journal, trade show, or major media publication.

7. You have had your work showcased at artistic exhibitions or showcases; the officers ensure that the work is yours and whether the venue was an art exhibition or showcase.

8. You have performed lead or critical roles in distinguished organizations, first, they determine if the organization you worked in is a distinguished one. Then, the importance of your role is evaluated based on endorsement letters and the performance you exhibited while in lead roles.

9. You have higher remuneration than most professionals in your field; your salary is compared to the wage statistics in your country.

10. You have commercial success in performing arts; they focus on the sales volume or box office collection to determine if you qualify.

Step 2 of the EB-1A Adjudication Process

The final merit determination, or determining if you belong to the few who rose to the top of your chosen field, happens in step 2. This is where the adjudicating officer's experience and opinions come into the play.The evidence is analyzed in totality, as in if in the case of 3 pieces of evidence, all three will be evaluated in totality to determine your extraordinary qualification. That means you'll still be considered extraordinary even if you aren't equally stronger in all three evidentiary areas.

Also, the officer has no right to deny your visa based on the absence of specific criteria. For example, suppose the officer believes the publication of scholarly articles is a must-have requirement for being extraordinary. In that case, they don't have the right to disqualify you if you don't have any.

The USCIS officers also ensure that you are sustaining national or international acclaim if you've once been awarded for your achievement. According to the USCIS, "the term sustained does not imply an age limit on the beneficiary" (petitioner), and "there is also no definitive time frame on what constitutes sustained."The officers also determine whether you would continue to work in your field of experience during the 2-step evidentiary review. While proving this is quite challenging in the case of fields like sports, it is pretty straightforward in the case of areas like science or arts.

Still have questions about the 2-step adjudication approach or EB-1A visa? Reach out to us, and we'll address your questions through our upcoming blogs.