The Kazarian Standard: Complete EB1A Attorney Reference

Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) is the most cited circuit court decision in EB1A practice. It invalidated the adjudication methodology USCIS had been using for years, imposed a two-step analytical framework on all extraordinary ability petitions, and prompted a nationwide policy change that reshaped how every I-140 petition is evaluated. Every EB1A attorney needs to understand the case itself — not just the resulting framework — because the distinction between a valid Step 2 denial and a Kazarian error is the difference between a winnable appeal and an unwinnable one.

This article covers the case, the court's holding, the 2010 USCIS policy memo, post-Kazarian adjudication patterns, and how the framework applies in non-9th Circuit service centers. For the practical Step 2 drafting guide, see Kazarian Step 2: Writing the Final Merits Argument. For the full EB1A petition preparation workflow, see the EB1A petition guide.

The Case: Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)

Khachatur Kazarian was an Armenian physicist who petitioned for EB1A classification based on his work in theoretical physics. USCIS denied the petition, and the district court affirmed. The 9th Circuit granted appeal.

The central error USCIS made: In evaluating Criterion 5 (original contributions of major significance), USCIS conducted a substantive quality evaluation of Kazarian's publications at Step 1. Rather than asking whether he had submitted evidence that appeared to meet the criterion — the Step 1 inquiry — USCIS had assessed whether the publications were actually of major significance in the field. The 9th Circuit found this error: USCIS was mixing the criterion-satisfaction analysis (Step 1) with the final merits determination (Step 2) in a way that produced an improper result.

The court's analytical framework:

The 9th Circuit articulated the correct methodology:

Step 1: The adjudicator evaluates whether the petitioner has submitted "qualifying evidence" for at least three of the ten regulatory criteria. At this step, the question is whether the type and form of evidence submitted appears to satisfy the criterion — not whether the evidence is compelling enough to establish extraordinary ability at a high level.

Step 2: If three criteria are met at Step 1, the adjudicator proceeds to the Final Merits Determination: a holistic evaluation of the totality of the evidence to determine whether the petitioner has risen to the "very top of the field of endeavor" with "sustained national or international acclaim" under 8 CFR 204.5(h)(2).

Why this distinction matters: The error USCIS made in Kazarian — applying Step 2 quality analysis at Step 1 — continues to appear in denial decisions. A petition that meets the formal requirements of three criteria but receives denials that discuss evidence quality rather than criterion satisfaction has received a Kazarian-incompatible analysis. That procedural error is an argument ground for MTR or AAO appeal that is distinct from the merits of the petition.

The Two-Step Framework: What the Court Held

The 9th Circuit's framework can be stated precisely:

Step 1 — Qualifying Evidence: The petitioner must submit qualifying evidence for at least three of the ten listed criteria at 8 CFR 204.5(h)(3). The criterion is satisfied if the evidence submitted is of the type the criterion describes. Evidence quality — the substantive assessment of how impressive the evidence is — belongs to Step 2, not Step 1.

Step 2 — Final Merits Determination: If Step 1 is satisfied, USCIS conducts a totality-of-the-evidence assessment to determine whether the petitioner is "among that small percentage who have risen to the very top of the field of endeavor" with "sustained national or international acclaim." The question is not whether each exhibit is impressive individually, but whether the combined record establishes the level of achievement the statute requires.

The bright-line rule for denial: If fewer than three criteria are met at Step 1, USCIS may deny without conducting Step 2. If three or more criteria are met at Step 1, USCIS must conduct a Step 2 analysis before denying.

What the framework does not do: The Kazarian framework does not lower the substantive standard for extraordinary ability. The petitioner must still be among the small percentage at the top of the field — Kazarian only specifies how that determination must be made procedurally, not what level of achievement is required.

How USCIS Adopted Kazarian via Policy Memo (PM-602-0005.1)

Kazarian formally bound only the 9th Circuit. For the framework to apply nationally, USCIS needed to adopt it through policy. USCIS issued Policy Memorandum PM-602-0005.1 in August 2010, titled "Evaluation of Evidence Submitted with Certain Form I-140 Petitions."

What PM-602-0005.1 did:

The memo formally adopted the Kazarian two-step framework for EB1A and EB1B (outstanding professor or researcher) petitions adjudicated at all service centers. Adjudicators nationwide were instructed to apply the two-step analysis regardless of circuit jurisdiction. The memo explicitly noted that USCIS agreed with the 9th Circuit's critique and was correcting its adjudication methodology accordingly.

The memo also addressed the substantive standard at Step 2: it confirmed the "very top of the field" / "small percentage" language as the operative metric for the Final Merits Determination.

The current status of PM-602-0005.1:

The Policy Manual (Volume 6, Part F, Chapter 5) has superseded individual policy memos as the primary guidance document for EB1A adjudications. The Kazarian two-step framework is now embedded in the Policy Manual itself. Petitions and briefs that cite PM-602-0005.1 directly may be slightly dated — the current citation should be to the USCIS Policy Manual, which incorporates and restates the same framework. The memo reference remains useful in legal arguments because it demonstrates that USCIS affirmatively adopted the two-step standard, not merely complied with a circuit court mandate.

AAO Decisions Post-Kazarian: Clarifying Step 2

The AAO has issued hundreds of non-precedent decisions since 2010 applying the Kazarian framework. Several patterns have emerged:

Pattern 1 — The criteria/totality conflation error recurs. Despite the clear Kazarian holding, AAO decisions continue to issue Step 2 denials that read as Step 1 denials continued — discussing evidence quality criterion-by-criterion rather than evaluating the totality. This is the most common procedural error in post-Kazarian adjudications and the most common ground for successful MTR filings. See EB1A RFE Prevention Playbook for how to structure petitions that compel a correct Step 2 analysis.

Pattern 2 — "So what" denials at Step 2. Many post-Kazarian denials acknowledge that criteria are met but conclude that the totality is insufficient without explaining the comparative analysis. Denials of this type are often correct on outcome but incomplete on reasoning — the petitioner did not make the comparative argument and USCIS did not make it either. These denials are difficult to appeal because the outcome may be right even if the reasoning is thin.

Pattern 3 — Field definition as a Step 2 weapon. Post-Kazarian AAO decisions frequently cite an overly broad field definition as a ground for Step 2 denial. A petitioner who defines their field as "artificial intelligence" rather than "distributed training optimization" makes it essentially impossible for USCIS to assess whether they are in the "small percentage" — the comparison pool is too large and too heterogeneous. Narrow field definitions that match the petitioner's actual specialty produce better Step 2 outcomes.

The precedent gap: There are no Kazarian-precedent AAO decisions that establish binding guidance on specific evidence standards for EB1A criteria. Non-precedent decisions are published but not controlling. This gap is significant: attorneys cannot cite specific non-precedent AAO decisions as authority — they can only use them as signals of adjudication tendency.

Circuit Splits and Non-9th Circuit Approaches

Kazarian formally applies in the 9th Circuit's jurisdiction: California, Arizona, Nevada, and the Pacific Northwest. Petitions adjudicated at Nebraska Service Center (NSC) and Texas Service Center (TSC) fall outside the 9th Circuit, but both apply the Kazarian framework due to PM-602-0005.1.

Is there a meaningful circuit split? No. While other circuits have not formally adopted Kazarian, no circuit has rejected its framework. The 4th, 5th, and 11th Circuits have decided EB1A cases that are consistent with the two-step framework without formally citing Kazarian. Non-9th Circuit courts considering EB1A denials apply the same analytical structure.

Why "outside the 9th Circuit" is often cited in petitions: Some petitioners believe that NSC or TSC adjudicators apply a different standard than California-based adjudicators because the 9th Circuit does not have direct appellate authority over their decisions. In practice, the same framework governs because the Policy Manual, not circuit precedent, is the operative guidance for USCIS adjudicators.

Federal court review: If an EB1A petition is denied and the petitioner pursues federal court review outside the 9th Circuit, the court will apply the APA arbitrary-and-capricious standard of review. Under that standard, a denial that applies Kazarian-incompatible reasoning — mixing Step 1 and Step 2, or skipping the totality analysis — is vulnerable to reversal regardless of circuit. The two-step framework has become functionally binding because USCIS adopted it nationwide, not because Kazarian is circuit precedent outside the 9th.

How to Structure a Petition to Address Both Steps Explicitly

The Kazarian framework has direct structural implications for petition briefs:

Step 1 section structure: Each criterion section should argue two things: (a) that the evidence submitted is of the type the criterion describes, and (b) that the evidence is sufficient to establish the criterion under the preponderance standard. The language should be explicit: "The evidence establishes, by a preponderance of the evidence, that [criterion] is met." This formulation anchors the argument at the correct Step 1 level.

Step 2 section structure: A standalone Final Merits Determination section must appear after the criteria arguments. This section should: (a) define the field at the specific level of the petitioner's specialty, (b) describe the field's competitive landscape and what markers distinguish top-tier from competent practitioners, (c) position the petitioner within the top tier with evidence, and (d) state explicitly that the totality of the record supports a finding of extraordinary ability. See Kazarian Step 2: Writing the Final Merits Argument for the four-element Step 2 framework.

What happens if Step 2 is omitted: A petition that does not include a dedicated Step 2 section requires USCIS to construct the totality argument independently. USCIS will not reliably make the argument for you. The policy manual permits USCIS to deny at Step 2 when the petition does not make the totality argument — and that denial is defensible even when the criteria are clearly met. The petition must make both arguments.

Kazarian error as MTR ground: When a denial reads as a Step 1 denial for a petition that clearly met Step 1 criteria, the correct argument is a Kazarian-error MTR: the denial conflated Step 1 and Step 2, and under the two-step framework, USCIS was required to conduct a genuine totality analysis before denying. This argument is distinct from arguing the merits — it argues the process USCIS used was incorrect under its own framework.

For AAO decision patterns that illustrate Kazarian-compliant and Kazarian-error adjudications, see the AAO EB1A decisions analysis. For how Kazarian Step 2 shapes the petition structure in practice, see the Kazarian Step 2 final merits guide.

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