Law Offices of Jonathan
Liang
9300 Flair Dr., Suite 105, El Monte, CA 91731
Toll Free: 1-866-661-7705
Tel: (626)288-7900,
Fax: (626)288-7902,
http://www.lianglaw.com email:
counsel@lianglaw.com
By: Jonathan Liang, Attorney at Law
The USCIS started implementing a more
restrictive policy on EB-1A and EB-1B cases that first appeared
in memo form in August of last year. In our office we refer to
the memo as the “Kazarian Memo”, as it is based on the decision
of the US 9th Circuit Court of Appeals in Kazarian vs. USCIS.
My discussion will not be on the legality of the policy espoused
in the memo, though I do believe its legality is suspect. The
practical approach in preparing a potential EB-1a and EB-b case
is to understand the underpinnings of the new policy and to
overcome these additional hurdles with substantive evidence and
cogent analysis.
Briefly, the new USCIS policy on EB-1a and
EB-1b cases imposed on the EB-1 applicants the added burden of
demonstrating “sustained national or international acclaim”
and “achievements that have been recognized in the field of
expertise.” This is in addition to demonstrating the
applicant has met 3 of the criteria enumerated in the code of
federal regulations.
Notwithstanding the fact that the US
federal courts, and the USCIS own legacy memo all have endorsed
the more reasonable view that satisfaction of 3 items in the
regulations is itself a demonstration of the petitioner’s
international and national acclaim, potential petitioner now has
the added task of responding to more onerous requests based on
this new policy.
To more effectively deal with this added
requirement, the potential petitioner can, in our view, enhance
his or her EB-1 case by consider the following:
1.
Find Allies - Increase the Proportion of none US
references. We tell our clients, in the EB-1 context, to
have a proper proportion of supporting reference letters
from sources other than the United States. We counsel our
clients to have an ideal balance of reference letters from the
US and overseas. Of course, the proper balance varies due to
differing fields of research or area of extraordinary ability.
The key is to demonstrate sufficient “international or national
acclaim.”
2.
Pick Your Fight - Accentuate Particular Items that
reflect International Acclaim. In the new EB-1 environment,
evidence or information that accentuate the notion of
international or national acclaim need to be emphasized. This
turns on both the drafting of the petition letter, which is the
single most important document in the petition, and the
presentation of various other evidences that directly or
circumstantially point to the petitioner’s acclaim. How the
evidence is presented, more importantly, whether critical,
highly relevant information is presented in a manner that is
understandable, and accessible, by the USCIS examiner, can be a
factor in the case outcome.
3.
Know the Law – Familiarize yourself with the
“Trinity”. The EB-1 category, like other areas of
immigration practice, is constantly in flux. For the petitioner
who files the case without professional help, it is important to
have a familiarity with the EB-1 operational framework. This
include a familiarity with the trinity of EB-1 practice, they
are the legal statutes, the USCIS policy memos and the US Court
decisions governing the EB-1 area. The law consists of the
Immigration and Nationality Act (INA) and the Code of Federal
Regulations (CFR). The USCIS policy memos are particularly
important because the changes in USCIS policy and standards on
EB-1 cases have been promulgated mostly through USCIS agency
memos. The transition from the more liberal interpretation of
the INA by the legacy INS and later in 2010 by the USCIS to a
more stringent standard, can be clearly delineated from INS and
USCIS memos through the years. As for federal court decisions,
interested petitioners can get an introductory education by a
reading of the Buletini vs. US, and the Kazarian vs.
US cases.
4. Going
All In - Present “Totality of the Evidence”. In some cases,
there are no single evidence that will directly satisfy the
second prong of the EB-1 requirement. Adding all the evidence
together, however, can sometimes persuade the USCIS officer that
the petitioner’s level of acclaim has crossed the imaginary
threshold needed for approval. In a sense, the whole exercise of
deciding whether someone is “internationally or nationally
acclaimed” is subjective. Being a subjective exercise, it is
useful to use the full force of the entire evidence to
demonstrate that the subjective “international or national
acclaim” was established. This requires the use of considerable
rhetorical and persuasive skills of the preparer.
5.
Know Your Audience. I have written many times in
my previous posts on the Eb-1 topic, that the person examining
your case is not well versed in the field of your extraordinary
ability. You are presenting the evidence to a government
bureaucrat, with no other broad interests outside what he or she
is ordered to perform on the job. Your job is to make your case
compelling enough so that this functional bureaucrat will not
have a negative impression in the first 10 seconds. This
requires a humanistic element. This is similar to you getting a
job interview, not only do you have to prepare the interviewer’s
possible technical questions, but more importantly, to present
yourself in a likeable fashion so that you can connect with the
interviewer on a personal level. This consideration is
inherently nebulous, but preparing your case with an arsenal of
both professionally meritorious evidence and an understanding of
human nature may go a long way in propelling your case to the
approved pile.
We have practiced in the EB-1 area for over
15 years. The above are by no means inclusive of all issues and
considerations required in an EB-1 case. However, they are some
of the more important distillates from our decade and half
experience in this area. Even with the increased scrutiny in
EB-1 cases, we still believe the EB-1 category represents one of
the most direct, immediate, and cost effective ways of legally
immigrating to the US. If you are considering an application in
this category, you are welcome to contact our office for a one
on one consultation with me. We also provide free evaluations
via email. You can email your cv to:
counsel@Lianglaw.com for a free EB-1 evaluation.
Law Offices of Jonathan Liang
9300 Flair Dr., Suite 105, El Monte, CA 91731
Toll Free: 1-866-661-7705
Tel: (626)288-7900,
Fax: (626)288-7902,
http://www.lianglaw.com
email:
counsel@lianglaw.com
