Recently, the Ninth Circuit Court of Appeals once again slapped the USCIS Administrative Appeals Office (AAO) for unlawful rulemaking. In Kazarian v. USCIS, the Ninth Circuit again held that the AAO may not impose rules that cannot be found in existing regulations.

The Kazarian case involved a petition for employment based first preference (extraordinary ability) classification. The USCIS denied the petition. On appeal, the AAO upheld the denial. Among the grounds cited were findings that the beneficiary's publications had not been cited enough by other scholars and that the beneficiary's review of graduate level diploma work did not constitute his being the "judge of the work of others."

As to the first issue ("Authorship of Scholarly Articles in the Field of Endeavor"), the Ninth Circuit held:

"Pursuant to 8 C.F.R. § 204.5(h)(3)(vi), Kazarian submitted proof of his six articles in Astrophysics and his e-print in the Los Alamos National Laboratory archives, but did not demonstrate that other scholars had cited to his publications. The AAO held that without evidence of such citations, Kazarian’s articles did not meet the regulatory definition of evidence, because “publication of scholarly articles is not automatically evidence of sustained acclaim” and “we must consider the research community’s reaction to these articles.

The AAO’s conclusion rests on an improper understanding of 8 C.F.R. § 204.5(h)(3)(vi). Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5. Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). While other authors’ citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence. 8 C.F.R. § 204.5(h)(3). “If the agency intended to impose [peer citations] as a threshold requirement, we have little doubt that such records would have been included among the detailed substantive and evidentiary requirements set forth at 8 C.F.R. § 204.5[(h)(3)(i)-(x)].” Love Korean Church, 549 F.3d at 758."

As to the second issue ("Participation as a Judge of the Work of Others"), the court held:

"Pursuant to 8 C.F.R. § 204.5(h)(3)(iv), Kazarian submitted proof that he was a judge of graduate-level diploma works at Yerevan State University. The AAO held that “reviewing ‘diploma works’ for fellow students at one’s own university is not persuasive evidence of acclaim beyond that university,” and that absent “evidence that the petitioner served as an external dissertation reviewer for a university with which he is not otherwise affiliated,” Kazarian’s submission did not meet the regulatory definition of evidence.

The AAO’s conclusion rests on an improper understanding of 8 C.F.R. § 204.5(h)(3)(iv). Nothing in that provision suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with. Again, while the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement. Love Korean Church, 549 F.3d at 758."

This decision reaffirms the Ninth Circuit's earlier finding in Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008), which similarly found overreaching on the part of the USCIS in improperly attempting to read new content into an existing regulation.

This decision is important to all petitioners and beneficiaries. Taken at face value, it means that the USCIS must stop adding new requirements not found in the existing regulations or case law. This means that policies such as the "four year bachelor's degree" requirement, most of the additional EB1 extraordinary ability requirements, and even the new "control" aspect of the recent H1b memorandum are all now shown to be improper.

Certainly within the jurisdiction of the Ninth Circuit Court of Appeals, the USCIS is going to have a very hard time justifying denials based on legal standards not set forth in the law. We can expect to see a great deal of litigation in this area shortly.