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Kazarian v. USCIS: the "two-step review" for EB-1A extraordinary abilityKazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

In brief: In 2010, the U.S. Court of Appeals for the Ninth Circuit held that when USCIS decides whether an EB-1A applicant meets the evidentiary criteria listed in the regulation, it may not add new requirements beyond the regulation; the overall evaluation of the quality of the evidence and the applicant's standing belongs in the subsequent "final merits determination." USCIS then developed this approach into a nationwide two-step review, which is still how EB-1A petitions are reviewed today.

The case at a glance

Item	Details
Case name	Kazarian v. U.S. Citizenship and Immigration Services
Court	U.S. Court of Appeals for the Ninth Circuit (on appeal from the U.S. District Court for the Central District of California)
Citation / case number	596 F.3d 1115 (9th Cir. 2010); No. 07-56774
Decision date	March 4, 2010 (superseding the original opinion issued September 4, 2009 and published at 580 F.3d 1030, which was withdrawn)
Panel	Judges Pregerson, D.W. Nelson and Thompson; opinion by Judge Nelson, with a concurrence by Judge Pregerson
Law involved	INA 203(b)(1)(A) (extraordinary ability); 8 CFR 204.5(h)(3) (the ten evidentiary criteria)
Subject	How evidence is reviewed for EB-1A extraordinary ability
Current status	Still good law in the Ninth Circuit; its two-step review has been written into the USCIS Policy Manual (Volume 6, Part F, Chapter 2) and applies nationwide (as of October 2026)
Decision information	Leagle: Kazarian v. USCIS (March 4, 2010)

Background: the ten EB-1A criteria

EB-1A extraordinary ability is part of the employment-based first preference category. It requires no employer or labor certification, and applicants can file the I-140 themselves. The statute requires extraordinary ability in the sciences, arts, education, business or athletics, demonstrated by sustained national or international acclaim. Under the federal regulation at 8 CFR 204.5(h)(3), an applicant can submit evidence of a one-time major, internationally recognized award, or meet at least three of ten evidentiary criteria, such as:

nationally or internationally recognized prizes or awards;
membership in associations that require outstanding achievements;
published material in professional or major media about the applicant and his or her work;
serving as a judge of the work of others;
original contributions of major significance;
authorship of scholarly articles in professional journals or major media;
display of work at artistic exhibitions;
a leading or critical role for organizations with a distinguished reputation;
a high salary or remuneration significantly higher than others in the field;
commercial success in the performing arts.

Before Kazarian, a common problem was that officers, when deciding whether a criterion was "met," added conditions not found in the regulation, such as requiring that articles be widely cited or that judging be at a certain level. Applicants were turned away at the first hurdle, while the real overall assessment became blurred.

Facts

Poghos Kazarian was a theoretical physicist from Armenia who received his Ph.D. in theoretical physics from Yerevan State University in 1997 and then came to the United States. He filed an EB-1A petition on December 31, 2003; the USCIS California Service Center denied it in 2005, and the AAO dismissed his appeal in 2006. The federal district court granted summary judgment for USCIS. The Ninth Circuit's original decision of September 4, 2009 (with a dissent) also sided with USCIS; the panel later withdrew that opinion and issued a new opinion on March 4, 2010.

Issues

In deciding whether the "scholarly articles" and "judging" criteria were met, could the AAO add conditions not found in the regulation?
If the AAO's analysis was wrong, did Kazarian therefore meet at least three criteria?

How the court ruled

The court held that the AAO erred in its analysis of two criteria:

Scholarly articles: The AAO required the applicant to show the research community's reaction to his articles (for example, citations by others), but the regulation requires only that the applicant be the author of scholarly articles in professional journals or major media. Citing the circuit's earlier decision in Love Korean Church v. Chertoff, the court said USCIS and the AAO may not "unilaterally impose novel substantive or evidentiary requirements" beyond the regulation. Whether others cited the work may be considered in the final determination of whether the applicant is at the top of the field, but it is irrelevant to the threshold question of whether this type of evidence was submitted.
Judging: The court found the AAO's analysis of this criterion likewise erroneous: the AAO's doubts about the weight of his judging work should have been considered in the final merits determination, not used to find that the criterion was not met.

The court also held, however, that these two errors did not affect the outcome: even counting both criteria as met, Kazarian still did not reach the threshold of at least three criteria. The court therefore affirmed the denial. In his concurrence, Judge Pregerson stated that Kazarian could have been a suitable candidate for the EB-2 category and that applying for EB-1A was a mistake.

The court also distinguished two levels of analysis: first, whether the applicant submitted at least three types of evidence that satisfy the regulation; then, the evaluation of the quality of the evidence and whether the applicant is at the top of the field belongs in the subsequent "final merits determination." This framing later became the source of USCIS's two-step review.

How USCIS turned Kazarian into a two-step review

The 2010 policy memo

Following the decision, on December 22, 2010 USCIS issued a policy memo revising Chapter 22.2 of the then-current Adjudicator's Field Manual (AFM Update AD11-14), adopting a "two-part analysis" for petitions including EB-1A extraordinary ability, EB-1B outstanding professors and researchers, and EB-2 exceptional ability:

Step one: Decide criterion by criterion whether the evidence submitted objectively meets the regulatory criteria, and whether the required number is reached (for EB-1A, at least three of ten). This step looks only at whether the evidence fits the text of the regulation and may not add conditions beyond it.
Step two: final merits determination. Considering all the evidence together, decide whether the applicant is truly one of the small percentage at the very top of the field and has sustained national or international acclaim.

The current Policy Manual

The guidance was later incorporated into the USCIS Policy Manual, Volume 6, Part F, Chapter 2. Two recent updates bear directly on the Kazarian framework:

September 12, 2023: USCIS clarified how evidence is evaluated for EB-1A and EB-1B, including how to use comparable evidence when a criterion does not readily apply to the applicant's occupation; it gave examples of evidence that may meet each criterion or serve as comparable evidence, with special discussion of STEM fields; and it explained the two-step framework and the favorable factors considered in the final merits determination.
October 2, 2024: After collecting feedback, USCIS updated its EB-1A guidance again: team awards may be considered under the "awards" criterion; past memberships may be considered under the "membership" criterion; the "published material" criterion no longer requires that the material show the value of the applicant's work; and "exhibitions" in the regulation means artistic exhibitions, so non-artistic showcases can be offered only as well-explained comparable evidence.

The Policy Manual may still change; before filing, check the current version of the USCIS Policy Manual, Volume 6, Part F, Chapter 2.

Effect on the O-1 visa

The O-1A visa is a nonimmigrant visa whose regulation (8 CFR 214.2(o)) likewise lists several evidentiary criteria, generally requiring that at least three be met. USCIS takes a similar approach for O-1A as for EB-1A: first decide whether the evidence meets the required number of criteria, then consider all the evidence to decide whether the applicant meets the overall standard of extraordinary ability. On January 21, 2022, USCIS updated its O-1A guidance, adding examples of evidence in STEM fields and explanations of comparable evidence; in January 2025 it further clarified the O-1 guidance. The O-1 guidance is in Policy Manual Volume 2, Part M. Note that the legal standards for O-1A and EB-1A are not identical, and holding an O-1 does not mean an EB-1A will be approved.

What it means for applicants

Step one should not be "raised": If a request for evidence (RFE) or denial notice, in deciding whether a criterion is met, introduces conditions not found in the regulation (for example, requiring that articles be widely cited to count as "scholarly articles"), you can cite Kazarian and the Policy Manual to point out the problem.
But step two is what matters: Meeting three criteria is only the threshold. The officer can still conclude in the final merits determination that the applicant has not reached the level of "top of the field, sustained acclaim." Many denials happen at step two.
Evidence must have "quality": Citation data, the standing of the journals you reviewed for, media reach and how competitive an award is should not be added as conditions at step one, but they decide the outcome at step two. Prepare your materials with both steps in mind.
Comparable evidence needs explanation: It can be used only when a criterion does not readily apply to your occupation, and you must explain why it does not apply and why the evidence you submit is of comparable significance.

Practical tips

Go through the ten criteria one by one and choose the three or four with the strongest evidence as your main line, rather than listing many weak criteria.
Attach background material that shows the weight of each piece of evidence, such as an award's selection rules and acceptance rate, a publication's circulation, or the standing of the journals you reviewed for.
In the petition letter, address step one and step two separately, and finish by explaining as a whole why you are among the small percentage at the top of the field.
When you receive an RFE, first identify whether the officer thinks "a criterion is not met" or "the overall record does not show top-of-field standing," then respond accordingly. See How to respond to an RFE.
If your EB-1A evidence is not yet strong enough, you can assess paths such as NIW or O-1 at the same time.

Frequently asked questions

If I meet three criteria, will my EB-1A be approved?

Not necessarily. Meeting three criteria is only step one. USCIS also makes a final merits determination of whether you are among the small percentage at the top of your field and have sustained national or international acclaim.

Kazarian is a Ninth Circuit case. Does it apply to applicants in other states?

The decision itself binds courts within the Ninth Circuit. But USCIS has written the two-step review into the Policy Manual and applies it uniformly nationwide, so USCIS reviews your petition under this framework wherever you live.

My papers aren't cited much. Can I still meet the "scholarly articles" criterion?

Under Kazarian, this criterion asks whether you have authored scholarly articles in professional journals or major media; the number of citations is not a step-one condition. But citations will be considered in the final merits determination, and if they are low, you will need other evidence to show your influence.

Do team awards count?

Under the October 2024 Policy Manual update, team awards may be considered under the awards criterion. You still need to explain the award's recognition and your role on the team.

What can I do if my EB-1A is denied?

You can consider an appeal or motion on Form I-290B, refiling with stronger evidence, or switching to another category such as NIW. Which path to choose depends on whether the denial was based on step one or step two.