USCIS adopted the Kazarian standard without notice-and-comment rulemaking. A federal court has now said so. This is where we track what happens next.
Congress built the EB-1A program to be broad. USCIS has spent fifteen years narrowing it.
When Congress created the EB-1A classification, it meant to draw the best and brightest, in every conceivable field of endeavor, to the United States. The program was written to reach inventors, researchers, artists, and executives whose work strengthens the nation's economy and standing.
USCIS has not administered it that way. Adjudicators have narrowed the standard so far that, by the agency's own apparent logic, perhaps only Albert Einstein could qualify for an approval.
In December 2010, USCIS issued a policy memorandum adopting the Kazarian Two-Step adjudication policy created by the Ninth Circuit Court of Appeals. But it should have engaged in full notice-and-comment rulemaking, as required by the Administrative Procedure Act. The statute and the existing regulations do not provide for the second Kazarian step, and therefore USCIS's two-step policy is unlawful.
A watershed ruling out of the District of Nebraska, and the record of how it got there.
Any EB-1A or EB-1B petitioner denied under the Kazarian framework since December 2010 may have a claim worth examining.
Claims under the APA are generally subject to a six-year statute of limitations, running from final agency action. Petitioners with more recent denials are squarely within that window now.
Corner Post v. Board of Governors may reopen the door for some petitioners with denials issued before 2020, by tying the limitations period to when the petitioner was injured rather than when the rule was adopted. Whether and how it applies is fact-specific and worth a direct consult.
Each firm litigates independently. Together, we are coordinating on the legal record challenging Kazarian nationwide.
Counsel of record in Mukherji v. Miller, the case that established the strongest existing authority against the Kazarian policy.
Boutique immigration litigation firm focused on federal court strategy, appeals, and case direction across district and circuit courts.
Immigration litigation firm coordinating on Kazarian challenges and related EB-1 federal court matters.
If your petition was denied under the Kazarian standard, you may be able to challenge that denial. Send us the denial date, receipt number, and a copy of USCIS's EB-1A decision, and a coalition firm will follow up.
If you are tracking or filing a Kazarian challenge and want it reflected on this tracker, or want to coordinate briefing, reach out directly.