On Feb 04 2011 by Klasko Immigration

Everything Old is New Again

It seems I was incorrect last week when I noted that the E-1-1 RFE template was published without the final Kazarian guidance.  It turns out that the guidance had been posted, albeit somewhat furtively.  There was no email or announcement from the Office of Public Engagement (OPE), and when asked, was told that since the interim memo was already posted, the finalized memo was just inserted in its place.  It therefore was not categorized as a ‘new’ document.  In addition, it was sorted under the day it was signed (Dec 22), not the day it was actually posted (Jan 14). 

In any case, we do now have the final Kazarian memo and I can see why it was hiding.  Whereas the E-1-1 RFE template contains a clear articulation of the regulatory criteria and the evidence that should be provided to establish each criterion, the Kazarian memo suggests that even “objectively meeting the regulatory criteria” does not demonstrate that you’ve met the criteria.  As examples, it states that “publishing scholarly articles…regardless of the caliber, should satisfy the regulatory criteria in part one.  However for the analysis in part two, the alien’s publications should be evaluated to determine whether they were indicative of being one of a small percent of the top of the field.”  It applies this same logic to judging the work of others, and ostensibly, to all the other regulatory criteria as well.

The interesting thing about this ‘new’ section of the Adjudicator’s Field Manual (AFM) is that it is pretty much the same as the ‘old’ section of the AFM.  The old section also centered on the idea that each criterion has to independently demonstrate extraordinary ability, a position that was repeatedly rejected by federal courts.   See e.g. Buletini v. INS, Gulen v. Chertoff, Muni v. INS, and Racine v. INS

The ‘new’ AFM, however, takes this even one step further.  Even if it is successfully demonstrated that the beneficiary objectively and subjectively meets three criteria, immigration adjudicators are instructed that they can dismiss all of this evidence, if “when considering the petition in its entirety” they believe the beneficiary is nevertheless not extraordinary.   There are no defined standards that adjudicators must follow to make this all important determination; rather, it seems to be in their individual discretion.  Concepts such as due process and fundamental fairness seem to be gone, as objective evidence is rejected in favor of “I’ll know it when I see it”.