In a recent federal court case, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. March 4, 2010), the U.S. court of appeals upheld USCIS’ denial of an EB-1 Extraordinary Ability Immigrant Petition but found that USCIS had impermissibly redefined the categories of evidence listed in the federal regulations in a narrower fashion than the rules permitted, and improperly discounted evidence submitted by the petitioner. The Kazarian decision is of great interest to organizations and individuals who file Extraordinary Ability, Outstanding Researcher, and National Waiver Interest permanent resident cases because the court's analysis and conclusions in Kazarian support a contention made by immigration practitioners that USCIS has embarked on a mission to discount significant and valid evidence that their clients meet the evidentiary standards.

During a May 2010 meeting between the American Immigration Lawyers Association (AILA) and the USCIS Nebraska Service Center, AILA asked USCIS if it was in the process of changing its adjudicatory standards and training for Immigrant Petitions in the wake of the Kazarian decision. USCIS indicated that it had not modified adjudication standards based upon the decision, but was working with a group from another USCIS Service Center to draft a new style of Request for Evidence (RFE) as directed by USCIS Director Mayorkas. However, there is a concern that the two issues are not the same. The new style of RFE initiative is focused primarily on the due process concerns previously raised by AILA that USCIS fails to provide petitioners a clear understanding of where USCIS believes the evidence has not met the burden of proof. By contrast, the Kazarian decision focused on USCIS’ practice of erroneously evaluating (and often discounting) the sufficiency of the evidence that the petitioner submitted.