Kazarian Step 2: Writing the Final Merits Argument

The Kazarian v. USCIS, 596 F.3d 1115 two-step analysis is the reason well-built EB1A petitions get denied. Step 1 — whether the regulatory criteria are met — is well understood and usually won when the evidence is strong. Step 2 — whether the totality of the evidence establishes that the alien is among the small percentage at the very top of their field — is where petitions fall apart, because most attorneys treat it as a summary of Step 1 rather than an independent analytical section.

This is not a theoretical distinction. Under 8 CFR 204.5(h)(2), USCIS must determine whether the record establishes extraordinary ability even after finding that 3+ criteria are met. An adjudicator who finds criterion satisfaction at Step 1 can still deny at Step 2 if the petition does not affirmatively argue — with evidence — that the alien is at the top of their field. This article gives you the framework to prevent that outcome. For full petition structure context, see the EB1A petition guide.

The Kazarian Holding — What the 9th Circuit Actually Said

In Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), the 9th Circuit reviewed a denial where USCIS had evaluated the merits of evidence during the criteria-counting step — essentially finding a criterion was not met because the evidence didn't demonstrate extraordinary ability — rather than simply determining whether qualifying evidence for that criterion existed.

The court held that USCIS had conflated two analytically distinct steps. The correct framework:

Step 1: Determine whether the petitioner has submitted qualifying evidence for at least 3 of the 10 criteria. The threshold question at this step is whether the submitted evidence qualifies — not whether it is impressively persuasive. A published paper qualifies for Criterion 6 even if it was not widely cited. An invitation to judge qualifies for Criterion 4 even if the panel was not the most prestigious.

Step 2: If Step 1 is satisfied, evaluate the totality of the evidence to determine whether the alien has "extraordinary ability" as defined in the statute — meaning the alien has "risen to the very top of the field" and is among the "small percentage" who have done so (8 CFR 204.5(h)(2)).

USCIS adopted the Kazarian framework nationwide via Policy Memorandum PM-602-0005.1 (2010). All service centers apply this two-step analysis regardless of circuit. The practical consequence for petitions is that both steps must be addressed explicitly in the brief — assuming USCIS will infer an extraordinary ability finding from the criteria evidence alone is an error. The USCIS Policy Manual, Volume 6, Part F codifies how each criterion is evaluated at Step 1 and how the final merits determination is conducted at Step 2.

Step 1 vs. Step 2: What Each Analytical Step Requires

Step 1 — criteria satisfaction:

• Question: Does qualifying evidence exist for at least 3 criteria?
• Standard: Preponderance of the evidence
• What the adjudicator evaluates: Whether the submitted evidence fits within the criterion's regulatory definition
• What the adjudicator does NOT evaluate at Step 1: How impressive or persuasive the evidence is

Step 2 — final merits determination:

• Question: Does the totality of the record establish extraordinary ability?
• Standard: Preponderance of the evidence (same standard, different question)
• What the adjudicator evaluates: Whether the combined evidence demonstrates the alien is among the small percentage at the top of their field
• What the adjudicator DOES evaluate here: How the alien's accomplishments compare to others in the field

The critical implication: a petition can satisfy Step 1 with three criteria and still fail Step 2 if the criteria evidence, taken together, is thin. Satisfying three criteria on paper is not the same as demonstrating that the alien is extraordinary. The petition must make that argument independently.

What Step 2 Requires: The Four Elements

A complete Step 2 section must address all four of these elements:

1. Field definition (narrow) Define the alien's specific field with enough precision that the "small percentage" comparison is meaningful. "Computer science" encompasses millions of practitioners. "Distributed systems engineering for high-frequency trading infrastructure" has a far smaller top tier and makes the comparison tractable. The expert letters should confirm this field definition — if the alien's own experts describe a different field, there is a mismatch that USCIS will notice.

2. Competitive landscape characterization Describe what the top tier of this field looks like: how competitive entry is, what level of accomplishment distinguishes recognized experts from competent practitioners, and where the distribution thins. Expert letters that address the alien's relative standing are effective here. Industry data (conference acceptance rates, publication venue selectivity, award selection ratios) provides non-testimonial corroboration.

3. Distribution positioning Explicitly argue that the alien falls in the top tier of the defined field, using the criteria evidence as support. This is where criteria are synthesized rather than listed. The argument is not: "Criterion 4 is met, Criterion 5 is met, Criterion 8 is met." The argument is: "The alien's judging record (Criterion 4), the field-wide adoption of their contributions (Criterion 5), and their critical role at a distinguished organization (Criterion 8) collectively establish a standing in the top few percent of [specific field] practitioners — a standing that fewer than X% of active practitioners in this field achieve."

4. Regulatory language engagement Quote 8 CFR 204.5(h)(2) directly and argue that the alien meets it. Use the actual regulatory phrase: "small percentage who have risen to the very top of the field of endeavor." Argue with specificity that the alien falls within that group. Adjudicators following the Kazarian framework are looking for this explicit engagement with the statutory standard — a petition that doesn't use the regulatory language is harder to approve even if the evidence is strong.

The Four Errors That Lose Step 2

Error 1: Treating Step 2 as a summary of Step 1

The most common error. The petition concludes with: "As demonstrated above, the petitioner has met Criteria 4, 5, and 8. Accordingly, the petitioner is an alien of extraordinary ability." This is a non-argument. It asserts the conclusion without making the case that satisfying three criteria equals extraordinary ability. USCIS will deny on Step 2.

Error 2: No field comparators

The petition describes what the alien has accomplished without comparing it to what others in the field have accomplished. "The alien has 150 citations" does not establish top-tier standing unless the petition also establishes what the citation distribution looks like for practitioners at the alien's career stage in this specific field. Fifty citations may be top 5% in one field and median in another.

Error 3: Field defined too broadly

A petition that defines the field as "technology" or "medicine" is arguing that the alien is among the small percentage at the top of a field containing tens of millions of practitioners. The comparison becomes unmakeable. USCIS will find that the record doesn't establish top-tier standing in such a broad field — because no individual record could. Narrow the field to the alien's actual specialty.

Error 4: No synthesis — criteria listed rather than integrated

The Step 2 section restates each criterion in sequence rather than synthesizing them into a cumulative argument. Criteria are not independent achievements that happen to appear in the same petition — they are facets of a single person's professional standing. The Step 2 section must argue how they interact: the combination of a track record of judging + original contributions that others built on + a leadership role at a distinguished organization = a standing profile found only in the top tier of the field.

Structure of a Strong Step 2 Section

A well-structured Step 2 Final Merits Determination section runs 4–6 paragraphs with this architecture:

Paragraph 1 — Roadmap and regulatory hook: Open by citing 8 CFR 204.5(h)(2) and stating the question the section answers. "Under 8 CFR 204.5(h)(2), USCIS must determine whether the petitioner has 'extraordinary ability' — whether she is among the 'small percentage who have risen to the very top of the field of endeavor.' This section demonstrates that [Alien Name]'s record of accomplishment within the field of [specific field] places her within that small percentage."

Paragraph 2 — Field definition and competitive landscape: Define the field precisely. Describe its competitive nature: how many practitioners, what distinguishes the top tier, what the evidence shows about selectivity in the relevant venues (publication acceptance rates, award selection ratios, invitation-only conference participation).

Paragraph 3 — The criteria record synthesized: Bring together all criteria evidence into a single integrated argument. Do not just list the criteria — narrate how they collectively paint the picture of a top-tier practitioner. "The combination of [Criterion A evidence] + [Criterion B evidence] + [Criterion C evidence] describes a professional who [stands at the level of X]."

Paragraph 4 — Comparator positioning: Explicitly argue where the alien falls in the field's distribution. Use the expert letter statements, citation analysis, or award selection data to place the alien in the top few percent. State the conclusion clearly: "Based on the foregoing, [Alien Name] is among the small percentage of [field] practitioners who have risen to the very top of the field."

Optional Paragraph 5 — Address potential counterarguments: If the record has a gap that USCIS might use to question extraordinary ability at Step 2 — early career stage, narrow specialty, limited awards — address it proactively rather than leaving it for a denial or RFE.

Example Framework with Placeholder Language

Final Merits Determination

Under 8 CFR 204.5(h)(2), USCIS must determine whether [ALIEN NAME]'s record 
establishes that she has "extraordinary ability" in her field and is among the 
"small percentage who have risen to the very top of the field of endeavor." 
Based on the totality of the evidence submitted, the answer is yes.

[ALIEN NAME]'s field is [SPECIFIC FIELD — e.g., "machine learning 
infrastructure for distributed training systems"]. This is a highly specialized 
area within [broader discipline], practiced by an estimated [N] active 
researchers and engineers worldwide. Entry at the recognized-expert level 
requires [description of what distinguishes top tier — publication in top 
venues, adoption of contributions by major organizations, invitation to lead 
working groups, etc.]. Per expert [NAME], fewer than [X]% of active 
practitioners in this field have achieved [the type of standing the alien has].

[ALIEN NAME]'s record demonstrates standing in that top tier. Her [Criterion A 
accomplishment — e.g., original contributions adopted by X organizations] 
establishes that the field has recognized her work as significant beyond her 
employer. Her [Criterion B accomplishment] places her among the [N]% of 
practitioners who have [been invited to judge / published in top venues / etc.]. 
Her [Criterion C accomplishment] reflects the kind of organizational reliance 
reserved for the most capable practitioners in the field.

Taken together, this record does not merely demonstrate competence or seniority. 
It demonstrates the specific combination of recognition, adoption, and 
organizational impact found only in practitioners who have risen to the very 
top of [SPECIFIC FIELD]. [ALIEN NAME] is among the small percentage of 
[SPECIFIC FIELD] practitioners described in 8 CFR 204.5(h)(2), and the 
evidence submitted in this petition establishes that standard by a preponderance.

This framework should be adapted to the alien's specific evidence. The bracketed placeholders are the minimum content — each must be filled with specific, exhibit-cited facts from the record.

AAO Decisions Where Step 1 Was Met But Step 2 Failed

Published AAO non-precedent decisions contain consistent patterns in Step 2 denials:

Pattern 1 — Met criteria, no synthesis: The petition establishes that an award qualifies, that the alien authored publications, and that the alien served on a judging panel — but the Final Merits section is a single paragraph asserting extraordinary ability without argument. AAO finds: "While the petitioner has met the evidentiary criteria, the record does not establish that the petitioner has achieved a level of expertise placing them among that small percentage who have risen to the very top of the field."

Pattern 2 — Broad field, thin comparison: The petition defines the field as "biomedical research" and argues that 150 citations across 12 papers establishes top-tier standing. AAO finds: "The record does not sufficiently establish the petitioner's relative standing within the field of biomedical research compared to others in the field."

Pattern 3 — Criteria listed, not synthesized: The Final Merits section restates each criterion in sequence. AAO finds: "Merely listing the criteria satisfied does not constitute a final merits determination. USCIS must evaluate the totality of the evidence to determine whether the beneficiary has demonstrated the high level of expertise required for EB1A classification."

The common thread: USCIS has made clear it will not infer an extraordinary ability finding from criteria evidence. The inference must be supplied by the petition, with argument, field context, and comparator evidence. Petitions that omit this are denied on Step 2 regardless of criteria strength. For AAO non-precedent decisions showing these patterns in full, the AAO EB1A decisions analysis covers the most instructive recent cases.

For more on the RFE pattern that follows from a weak or absent Step 2 section, see the RFE prevention playbook. For criteria selection strategy that feeds into the Step 2 synthesis, see the EB1A evidence strategy by client profile. For the complete Kazarian legal standard, see the Kazarian complete reference.

Immigration Copilot drafts the final merits section with comparator framing built in, drawing on the evidence record already mapped from the uploaded documents. Get started →