Outstanding Researchers and Extraordinary Ability

Extraordinary Ability and outstanding researcher categories are different.  Extraordinary ability petitioners may self-petition and outstanding researchers may not.  Outstanding researcher petitions require the petitioning employer to show that it operates a permanent full time research department and extraordinary ability petitions do not.  But the extraordinary ability category carries a high burden of proof making it among the most difficult of petitions to get approved.

Extraordinary ability cases have faced difficult hurdles for decades.  The most common problem is USCIS introducing novel legal requirements into almost every case.  For example, USCIS adjudicators often find that the petitioner's publication of articles in scholarly journals do not meet the published articles requirement unless petitioner proves that the articles were met with sustained national or international acclaim and require that others have cited to the articles.  This is clearly not the rule and creates an awkward circular reasoning problem: the statute directs the petitioner to satisfy at least three listed categories to prove he has achieved sustained national or international acclaim and has risen to the top of his field.  It is improper to require that each category of evidence itself achieves "acclaim" and "top of the field" status because USCIS defines meeting three of the categories as achieving sustained acclaim and top of the field status.

USCIS released statistics in February 2011 for I-140 outstanding researcher and extraordinary ability petition total filings and approval rates.  The numbers are illuminating.  From 2005 to 2010 extraordinary ability petition approvals hovered in the range of 47% to 62%, while outstanding researcher petitions ranged from 90% to 95% over the same period.

USCIS also sometimes finds that petitioners' evidence showing participation as a judge of the work of others fails becauase reviewing the work of others at a single university fails to show acclaim beyond that university.

Bernard Wolfsdorf's work in appealing Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. March 4, 2010) case went a long way toward opening the extraordinary ability category from USCIS' difficult and opaque standards.  But it remains to be seen whether USCIS will adopt Kazarian's rules without further litigation.

In May 2010, the American Immigration Lawyers Association asked USCIS Nebraska at a liaison meeting what it would do to implement procedural changes to comply with Kazarian.  USCIS responded that it had not modified adjudications standards as of that time, but was working on a new type of Request for Evidence that would address similar problems.  But USCIS did not clarify if the problems addressed include specifically the Kazarian one.