USCIS' New Policy for "Two-Step Approach" of Form I-140 Petitions Evaluation

On August 18, 2010, USCIS issued a Policy Memorandum for "Two-Step Approach" Form I-140 Petitions Evaluation. This Policy Memorandum (PM) provides guidance regarding the analysis that Immigration Service Officers (ISOs) must use in adjudicating Form I-140, Immigrant Petition for Alien Worker, filed for:

EB1 - Extraordinary Ability petitions;
EB1 - Outstanding Professor or Researcher petitions;
Aliens of Exceptional Ability, including EB2 NIW petitions.
The purpose of this PM is to ensure that U.S. Citizenship and Immigration Services (USCIS) processes Form I-140 petitions filed under these employment-based immigrant classifications with a consistent standard.

In addition, this PM revises Adjudicator’s Field Manual (AFM) Chapter 22.2 to clarify that USCIS will make successor-in-interest (SII) determinations in Form I-140 petitions supported by an approved labor certification application if the transfer of ownership took place while such application for labor certification was still pending with the Department of Labor (DOL).

The ISO is reminded that the standard of proof applied for petitions filed for Aliens of Extraordinary Ability, for Outstanding Professors or Researchers, or for Aliens of Exceptional Ability is the “preponderance of the evidence” standard. Thus, if the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is true “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

If a petitioner provides supporting documentation that satisfies the regulatory prongs, and such documentation is legitimate (i.e. not forged, issued in error, inaccurate, etc.), Kazarian prohibits USCIS from “unilaterally imposing novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. section 204.5.” Kazarian requires that an adjudicator first determine whether the petitioner has provided evidence to satisfy the requisite number of evidentiary prongs under the particular EB-1 classification.

The adjudicator must look at each prong for which evidence has been provided (“the proper procedure is to count the types of evidence provided”) to determine how many evidentiary prongs have been satisfied. If the documentation (including but not limited to articles, publications, memos, reference letters, expert testimony, support letters, etc.) is relevant to the category, is substantive (does not merely recite the regulations) and is credible.

Once USCIS determines that the petitioner has provided satisfactory evidence for the requisite number of prongs, the second phase of review requires the adjudicator to weigh the evidence against the required high level of expertise for the visa category. It is in the second phase of the review where the evidence can be evaluated to see if, cumulatively, it proves by a preponderance of the evidence that the applicant or beneficiary is at the very top of his or her field of endeavor.

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