Kazarian v. USCIS

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:
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:
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:
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:
Court case.
Having exhausted administrative remedies provided within the immigration bureaucracy, Kazarian filed a complaint with the United States District Court for the Central District of California. The USCIS filed a motion for summary judgment, and the judge Manuel Real granted the motion. Kazarian timely appealed to the United States Court of Appeals for the Ninth Circuit.
The case was argued and submitted on December 9, 2008. An initial opinion and dissent were filed on September 4, 2009. The initial opinion upheld the USCIS and AAO's decision completely. In response, Bernard Wolfsdorf, an immigration lawyer who has served as president of the American Immigration Lawyers Association, sought review of the decision. According to immigration lawyer Cyrus D. Mehta, who informally helped with brainstorming, the purpose of seeking review was not to overturn the decision in its entirety but to discredit some of the AAO's reasoning.
The decision was filed on March 4, 2010. The opinion was delivered by the judge Dorothy Wright Nelson, with concurrence by Harry Pregerson. Although the decision was against the petitioner, the arguments included in the court's opinion were considered a victory by immigration lawyers at the time, accomplishing the purpose sought by the push to seek review.
Opinion of the court (by Nelson).
The court noted that the AAO had concluded that Kazarian had provided evidence for zero of the ten types of evidence (compared to the minimum requirement of three). However, the court argued that for two of the ten types of evidence, Kazarian had provided enough initial evidence and the AAO's grounds for rejecting the evidence were based on a misinterpretation of the regulations. The two lines of evidence where the court said that AAO had erred were:
In the process of elaborating on its reasoning, the court proposed a two-step process, as follows:
The court held that the AAO had erred by imposing additional evidentiary requirements. However, since this error was made on only two of the ten lines of evidence, and the petition should have been rejected anyway, the error was "harmless": it did not materially affect the adjudication.
Concurrence (by Pregerson).
Pregerson, while concurring with Nelson's opinion, noted that Kazarian would have been an excellent candidate for the EB-2 visa (exceptional ability) and that it was a mistake on the part of his lawyer to suggest he apply for the EB-1. This was consistent with the fact that Kazarian's original lawyer, George Verdin, was on the List of Currently Disciplined Practitioners maintained by the Executive Office for Immigration Review.
Impact.
2010 Policy Memorandum.
On August 20, 2010, the USCIS published an interim policy memo for comment (comment period ending September 3, 2010). The memo proposed using the two-step process proposed by the court in its decision on the case. The memo accordingly announced corresponding changes to the Adjudicator's Field Manual (Chapter 22.2, with the update called AFM Update AD11-14), the manual used by USCIS officers (known as Immigration Service Officers, or ISOs) while adjudicating cases.
The USCIS described the two steps as follows:
The official version of the memo was published on December 22, 2010, and the changes to the Adjudicator's Field Manual were finalized.
Changes to how petitions were prepared.
The case and the subsequent USCIS policy changes affected the way subsequent EB-1 petitions were prepared, as well as the way USCIS evaluated these petitions. The impact can be seen from the large number of AAO cases since 2010 where "Kazarian v. USCIS" has been cited.
One recurrent theme of advice for a successful EB-1 petition after "Kazarian" has been to focus the petition on the lines of evidence where the strongest case can be made, and make a case using those lines of evidence based on strong, objective evidence meeting USCIS' regulatory guidelines.
Amicus briefs and criticism of final merits determination.
On August 18, 2011, the AAO announced that it was seeking "amicus curiae" briefs addressing its December 2010 policy memo. A number of briefs were submitted, including one by the American Immigration Lawyers Association (AILA). The AILA's brief was critical of USCIS's current framework for final merits determination, and argued that the two-step approach should look as follows:
Opinions similar to the AILA's have been voiced by immigration lawyers discussing "Kazarian" in subsequent years.
DHS Ombudsman recommendations.
On December 29, 2011, the DHS Ombudsman published the following recommendations:
Further court cases.
The reasoning in "Kazarian v. USCIS" was upheld by courts in later cases, such as "Rijal v. USCIS", where the United States District Court for the Western District of Washington rebuked the USCIS for conflating the two steps of its two-step approach in the reasoning it used to reject petitioner Anil Rijal's EB-1 petition. Although this court case was decided after the "Kazarian" memo was official practice, the USCIS' denial of the petition had happened prior to the memo.