The Alliance of Business Immigration Lawyers (ABIL) is preparing an amicus curiae (“friend of the court”) brief to the Administrative Appeals Office (AAO) in response to USCIS’ recent request concerning the appeal of a denied immigrant petition for a foreign national seeking to be classified as an alien of extraordinary ability. This decision will critically affect the adjudication of immigrant petitions for persons of extraordinary ability, outstanding professors or researchers, and exceptional ability immigrants. In ABIL’s view, USCIS misread the U.S. Court of Appeals for the Ninth Circuit when it reviewed an AAO decision dismissing the appeal of an extraordinary ability petition. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).
Among other things, the Kazarian court firmly reminded both the USCIS and the AAO that they must carefully apply the statutory and regulatory requirements when performing their duties. Although the “extraordinary ability” visa requirements are restrictive, the AAO cannot impose arbitrary requirements on applicants. By forcing the USCIS and the AAO to make their determinations based on the regulations exactly as written, the Ninth Circuit has assured that the burden placed on future “extraordinary ability” visa applicants will not be higher than what the immigration regulations require. The Kazarian court scolded USCIS for making up and applying extra-regulatory evidentiary requirements, yet USCIS has responded by requiring a “final merits determination” analysis.
Sadly, the implementation of USCIS’s erroneous policy has resulted in almost one-third, or about 12,000, first preference immigrant visa numbers going “unused” last year as the top foreign nationals in the sciences, arts, education, business, or athletics have been turned away in droves, only to make other countries more competitive.