Ninth Circuit Rules USCIS Unlawfully Imposed Arbitrary Requirements on Employment Visas

In a decision issued today, the U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge D.W. Nelson (with a concurring opinion by Judge Harry Pregerson) ruled that the U.S. Citizenship and Immigration Services (USCIS) unlawfully imposed extra-regulatory requirements on a petition for a worker of “extraordinary ability” (EB-1). The case in question, Kazarian v. USCIS, involved a theoretical physicist whose employment-based visa was denied because he did not demonstrate “the research community’s reactions to his [scholarly] publications” – an arbitrary requirement with no justification in the law. In today’s decision, the Ninth Circuit amended its previous ruling and reversed the agency’s interpretation. The court held that “neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].”

KJ