Kazarian v. Holder (3/4)

**Extraordinary ability visa, novel evidentiary requirements**

The AAO held that Kazarian provided zero of the ten types of evidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x);  however,  the AAO should have held that Kazarian presented two types of evidence.  Pursuant to 8 C.F.R. § 204.5(h)(3)(vi), Kazarian submitted proof of his six articles in Astrophysics and his e-print in the Los Alamos National Laboratory archives, but did not demonstrate that other scholars had cited to his publications. The AAO held that without evidence of such citations, Kazarian’s articles did not meet the regulatory definition of evidence, because “publication of scholarly articles is not automatically evidence of sustained acclaim” and “we must consider the research community’s reaction to these articles.” The AAO’s conclusion rests on an improper understanding of 8 C.F.R. § 204.5(h)(3)(vi)–nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor an Administrative Appeals Office]may unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.  Pursuant to 8 C.F.R. § 204.5(h)(3)(iv), Kazarian submitted proof that he was a judge of graduate-level diploma works at Yerevan State University. The AAO held that “reviewing ‘diploma works’ for fellow students at one’s own university is not persuasive evidence of acclaim beyond that university,” and that absent “evidence that the petitioner served as an external dissertation reviewer for a university with which he is not otherwise affiliated,” Kazarian’s submission did not meet the regulatory definition of evidence.    However nothing in  8 C.F.R. § 204.5(h)(3)(iv) suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with and the AAO may not unilaterally impose a novel evidentiary requirement.  Nevertheless,  while the AAO’s conclusion that Kazarian presented zero types of evidence was in error, the error was harmless because Kazarian failed to establish his eligibility for an “extraordinary ability” visa– he presented only two of the types of evidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x).

http://www.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdf