Kolko and Casey, P.C.’s Petula McShiras Contributes to AILA’s Practice Pointer on using Judicial Decisions in the O and EB-1 Context

On September 10, 2024, the American Immigration Lawyers Association published a Practice Pointer for fellow immigration attorneys regarding the use of Judicial Decisions to respond to Requests for Evidence in the O (nonimmigrant) and EB-1 (immigrant) categories.

Kolko & Casey’s very own Senior Associate Attorney, Petula McShiras, was one of three authors on this Practice Pointer.

The O visa is for nonimmigrants who have extraordinary ability. An individual seeking O-1 nonimmigrant status must establish that they possess extraordinary ability in the sciences, arts, education, business, or athletics (O-1A), or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements (O-1B). In the O-1A category, the individual must meet 3 of 8 criteria listed in the regulations. In the O-1B category, the individual must meet 3 of 6 criteria listed in the regulations.

The EB-1 is for intending immigrants who are of extraordinary ability. An individual seeking permanent residence under EB-1A needs to establish extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. An individual in this category must also show that they are seeking their lawful permanent residency to continue work in this area of extraordinary ability and that their entry will substantially benefit the United States. To do this, they must meet at least 3 criteria of 8. An individual seeking permanent residence under the EB-1B category must show that they are recognized internationally as an outstanding researcher in a specific area. To show they are recognized internationally, the individual must establish that they meet 2 of 6 criteria.

The practice pointer focuses on two recent federal court decisions, Golani v. Allen, 22-10202 (E.D. Mich. July 31, 2023), and Scripps College v. Jaddou, 4:23CV3075 (D. Neb. Dec. 12, 2023), to review helpful pointers gleaned from those cases to overcome requests for evidence and/or denials.

In Golani, the Court granted Dr. Golani’s motion for summary judgment, finding that the USCIS denial of his EB-1A petition was “arbitrary and capricious” because it failed to fully consider the evidence and adequately explain why the evidence did not meet the criteria.

In Scripps College¸ the Court granted summary judgment to Scripps College, finding that the USCIS denial of the EB-1B petition was arbitrary and capricious, an abuse of discretion, and not in accordance with the law because USCS imposed novel evidence requirements and did not “articulate a satisfactory explanation” for its decision. In Scripps, the Court heavily relied on the regulations as well as USCIS’s own language in the policy manual.

The practice pointer also reviews other federal court cases that address the various criteria and how to use those decisions to push back on requests that are outside the scope of the regulations.

Finally, the Practice Pointer focuses on how the recent Supreme Court decision in Loper Bright Enterprises v. Raimondo, __ U.S. __, 2024 U.S. LEXIS 2882 (U.S. June 28, 2024), could be used to challenge the Chevron deference given to the Final Merits Analysis as outlined in the 9th circuit decision Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2020) and adopted by USCIS.

AILA members can access the Practice Pointer here.