USCIS Open Forum June 2011 Update – EB1 and the Kazarian guidance, VIBE program and its deficiencies, the increased number of standard RFEs, and More

USCIS open forum, designed to encourage open communication between USCIS representatives and AILA practitioners, was held at AILA (American Immigration Lawyers Association) Annual Conference on June 17, 2011. USCIS Director, Alejandro Mayorkas, was present to answer the questions of immigration practitioners regarding the current issues in USCIS adjudication procedures. Attorney Kate Powel who attended this session, prepared the following points for our readers:
The Open Forum concentrated on the issues of aliens with extraordinary abilities category and the Kazarian guidance, VIBE program and its deficiencies, the increased number of standard RFEs, and other problem areas.

During the open forum, AILA members pronounced their concerns regarding the unpredictability in adjudications and stricter adjudication standards, especially as applied to small businesses, that are contributing to an environment that is discouraging foreign companies from coming here.


AILA representative raised the concerns of many AILA members regarding the so-called Kazarian guidance issued by the agency. On January 14, 2011, USCIS released a Policy Memorandum providing internal guidance for the adjudication of immigrant visa petitions based upon extraordinary ability in the sciences, arts, education, business, or athletics and for outstanding professors or researchers. This Policy Memorandum, known as the “Kazarian” memo adopts the two-part adjudicative approach to evaluating evidence set forth by the Ninth Circuit in Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010).

AILA asserted that the guidance in the Kazarian policy memo is insufficient and falls short of the goal of providing examiners with sufficient analytical tools to properly weigh and evaluate evidence in support of EB-1-1, EB-1-2, and EB-2 “exceptional ability” petitions. Neither the Kazarian decision, nor the policy memo, clearly articulates how the final merits determination should be made. Cases cited favorably by Kazarian fill that gap. For example, in Buletini, the court first analyzed whether the plaintiff met three of the ten criteria enumerated in 8 C.F.R. §204.5(h)(3). Having determined that the plaintiff did provide sufficient evidence of three of the ten enumerated criteria, the court stated:
Once it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. §204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard.

As noted by AILA, prior to the issuance of the final version of the memo, USCIS added language to the Final Memo that requires officer’s to not merely make general assertions, but rather officers must articulate the specific reasons as to why the USCIS officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the individual possess the required high level of expertise for the immigrant classification they are seeking. The burden of proof, however, continues to rest with the petitioner to establish eligibility.

The absence of a discussion of the cases that provide the foundation for this analytical framework is the shortcoming to the Kazarian memo that undermines its effectiveness. AILA members have reported increased number of denials based on the second prong of the test. As reported, the adjudicators found various reasons to deny cases even though the three criteria were met based on the second prong of the test. AILA recommended that USCIS revise the Kazarian memorandum to include a discussion of underlying case law to provide examiners with a clear understanding, and clear examples, of the way to analyze the “second prong” of the “two-prong” test.

Director Mayorkas stated that USCIS believes that the two-part adjudicative approach to evaluating evidence described in the “Kazarian” memo simplifies the adjudicative process by eliminating piecemeal consideration of the required high level of expertise for the immigrant classification and shifts the analysis of overall high level of expertise to the end of the adjudicative process when a determination on the entire petition is made (the final merits determination). The Director emphasized that the evidence in its totality must then establish eligibility for the required high level of expertise for the immigrant classifications.

AILA members tried to urge Director Mayorkas to interpret the language of Kazarian as shifting the burden from the petitioner to the Service to prove that the alien does not qualify for the category sought. Director Mayorkas, however, did not give a clear response on whether the agency will actually consider this suggestion.


USCIS open forum also raised the concerns of many AILA members regarding standard RFE templates that do not clearly explain why the specific information is being requested. Often times, the RFEs prompt the petitioners to submit the information that has already been provided in the case. The RFEs use general templates that fail to address the specifics of a case and, as a result, the petitioner cannot understand the problem and the deficiency in the originally submitted file. A lot of times, the Service sends a standard RFE, several pages long, asking for the same information that has already been submitted. Moreover, the RFEs fail to explain why the information is being requested. The petitioners or their attorney representatives are left wondering what is requested in the specific RFE. Lack of clarity in the RFEs often leads to case denials. The denial notices often describe concerns of the adjudicators that were not even raised in the RFEs. Due to the risk of a denial if responses to RFEs are not provided, petitioners have to engage in very costly and time-consuming efforts to locate all the documents requested even though they might not be required for the determination because the agency, in fact, had some other concerns in mind when issuing the RFE which the agency did not clearly articulate.

AILA asserted these concerns and asked Director Mayorkas to address them. Director Mayorkas assured the members that the Service is in the process of reevaluating guidance in respect to the RFEs. Director agreed that the current RFE procedures are not effective, confusing, and have to be changed. The following question, however, remains unanswered – When will USCIS update the RFE procedures and provide sufficient guidance to the adjudicating officers? The Service has not yet come to conclusion on
1) whether to prepare better templates for RFEs or
2) whether to train the officers to identify in the RFEs what the record contains, identify why the record is deficient, and provide examples of documents that the petitioner could submit to cure the deficiency.

It seems unlikely, however, that newer RFE templates will cure the RFE problems. It seems like no matter how advanced the templates are, if there is nothing specific about the particular case, the petitioner will not understand the problem causing the deficiency.

Director Mayorkas agreed that guidance is needed quickly in this area to avoid unnecessary denials but stated that the Service has to provide consistent and uniform policy which may take time to develop.


Another concern pronounced by AILA members was in respect to increasing number of RFEs and denials for H-1B cases involving small petitioning companies. Director Mayorkas stated that with small employers, the Service is more suspicious that the petitioner might not be a legitimate business. Director acknowledged that the adjudicators are not sufficiently educated on how the specific industry works and there is no policy guidance on the issue. Director noted that the agency is currently working on bringing the industry specialists as consultants into the agency training procedures to help the agency understand the petitioning businesses in a variety of industries.


AILA members also raised their concerns regarding VIBE program and the increased number of RFEs referencing VIBE issues. VIBE uses commercially available data from an independent information provider, currently Dun and Bradstreet (D&B), to validate basic information about companies or organizations petitioning to employ alien workers.

AILA members communicated to Director Mayorkas that VIBE program is not effective, leads to increased number of RFEs, and that D&B has repeatedly asked the petitioning companies to pay a fee for updating the employer’s information with D&B.

Director Mayorkas acknowledged that he is worried about the consequences of VIBE program. Director revealed his uncertainty as to whether the program would generate RFEs temporarily or permanently and agreed that it might not be an appropriate program.

Even though Director Mayorkas tried to address the concerns of AILA members, the specific guidance and clarifications are yet to come out. We will be monitoring the developments and will provide updates on the issues referenced above once the official guidance from the agency comes out.