The EB-1 Final Merits Determination: Is Meeting Three Criteria Enough for Approval?
When applying in the EB-1 extraordinary ability classification, meeting the requirement of three (3) qualifying criteria may feel like a significant achievement. However, as applicants and employers often ask, “Does meeting three criteria guarantee approval?” The short answer is: no. The EB-1 Final Merits Determination (FMD) plays a crucial role in deciding whether an applicant meets the extraordinary ability standard as defined in the regulations.
In this blog we will explore the process, the implications of the landmark decision in Kazarian v. USCIS to better understand and analyze how USCIS reviews qualifying evidence, under the initial three criteria, to support an approval in the EB-1 Final Merits context.
The Two-Step EB-1 Adjudication Process
Under the EB-1 extraordinary ability category, applicants must provide evidence under at least three (3) of the ten (10) criteria that demonstrates sustained national or international acclaim in their field. While applicants must satisfy at least three of the ten criteria, the Final Merits Determination assesses whether the evidence presented establishes that the applicant has risen to the top of their field.
The process involves two distinct steps:
Step 1: Threshold Criteria
USCIS evaluates whether the applicant has satisfied at least three of the ten criteria (e.g., original contributions of major significance, published material, or membership in associations requiring outstanding achievements).Step 2: Final Merits Determination
USCIS reviews the evidence as a whole to determine whether it showcases sustained acclaim and positions the applicant among the small percentage of individuals who have reached the top of their field.
The two-step Kazarian analysis mandates a rigorous evaluation of EB-1 applicants beyond the checklist of three (3) criteria, and is a fact-based intensive assessment of the length (“sustained acclaim”) and quality of the applicant’s career (“rank among the small percentage”).
Kazarian v. USCIS: Establishing the Two-Step Process
The 2010 seminal case, Kazarian v. USCIS, codified the evaluative framework for EB-1 petitions. Before this decision, USCIS often conflated the initial threshold analysis with the final merits review. The court determined that these are separate steps, with the Final Merits Determination providing a more exacting evaluation of whether the quantity and quality of documents was sufficient to meet the EB-1 enumerated standard of “sustained national or international acclaim” and “rank among the small percentage at the top of the field”.
What This Means for EB-1 Applicants
At Fraser Immigration Law PLLC, our attorney guides clients through the nuances of the Final Merits Determination. Simply meeting three criteria is not a guarantee of approval—applicants must present strong, compelling evidence of extraordinary ability.
Here’s how we help applicants strengthen their petitions:
Strategic Development of Evidence: Working closely with clients to identify and present the most impactful evidence of their achievements across all relevant and applicable criteria. In certain circumstances, it may be prudent to target as many criteria as possible. However, in others, a narrowly tailored approach with voluminous qualifying evidence under lesser criteria may serve as a more persuasive presentation.
Individually Tailored EB-1 Supporting Documents & Petition: From expert testimonials to the order of presentation of qualifying evidence, it is imperative to carefully construct and organize documentation in a manner that highlights the applicant’s sustained national and international acclaim according to the ever-shifting framework and policies used by USCIS EB-1 adjudicators. Furthermore, there are specific EB-1 criteria which USCIS has interpreted to apply only to certain occupational fields, and the comparable evidence provision is interpreted differently than that afforded to those applying in the O-1 visa classification. Further, strategic support and meticulous analysis are indispensable to the Form I-140A approval during times of visa retrogression/heightened adjudicative (“strict“) scrutiny.
Conclusion
The EB-1 visa represents one of, if not, the most stringent standard for approval in the context of U.S. employment-based, permanent residency classifications. As Kazarian v. USCIS demonstrates, meeting three criteria is just the starting point. The EB-1 Final Merits Determination distills for approval only those petitions which sufficiently document the long and successful careers of applicants at the highest level of the respective industry.
Fraser Immigration Law PLLC is a specialized firm in EB-1 extraordinary ability petitions helping high-achieving individuals navigate this complex process. If you are considering an EB-1 application or need assistance strengthening your petition, contact us for a case evaluation.