Kazarian Two-Step Analysis: How USCIS Actually Evaluates EB-1A Petitions

Most applicants learn about the 10 EB-1A criteria and conclude that satisfying 3 of them equals approval. This misunderstanding is the single most common reason for EB-1A denials. USCIS doesn't simply count boxes. Since 2010, every EB-1A petition has been evaluated under a two-step analytical framework derived from the Ninth Circuit's decision in Kazarian v. USCIS — and the second step is where nearly half of all recent petitions fail.

Understanding how the Kazarian framework actually works is not just academic knowledge. It determines whether your petition gets approved or denied.

The Origin: Kazarian v. USCIS (2010)

In Kazarian v. USCIS, 596 F.3d 1115, the Ninth Circuit Court of Appeals addressed how USCIS adjudicators should evaluate evidence in extraordinary ability petitions. Before the ruling, adjudicators sometimes rejected individual pieces of evidence at the criteria-counting stage based on quality judgments — for example, discounting a publication because the journal seemed low-tier, before even determining whether the criterion was technically satisfied.

The Ninth Circuit held that such quality judgments at Step 1 were improper. The initial assessment should be a mechanical check of whether the evidence meets the plain-language parameters of each criterion. Quality assessments belong in a separate, holistic final review.

USCIS codified this into a two-step framework in its Policy Manual, and has applied it consistently since.

Step 1: The Criteria Count

Step 1 is supposed to be objective and mechanical. The adjudicating officer asks: has the petitioner presented evidence that meets the factual requirements of at least 3 of the 10 criteria?

This is a preponderance of evidence standard — "more likely than not" that the criterion is satisfied. Officers are not supposed to weigh quality at this stage. They verify:

• Did the petitioner actually receive a prize? (Not: was it a prestigious prize?)
• Did the petitioner actually serve as a peer reviewer? (Not: was the journal prestigious enough?)
• Did the petitioner actually author a published scholarly article? (Not: how many citations did it receive?)

If the petitioner satisfies 3 criteria by preponderance of evidence, the officer proceeds to Step 2. If not, the petition fails at Step 1.

In practice, most well-documented petitions pass Step 1. The raw threshold of 3 criteria is not exceptionally difficult to satisfy for accomplished professionals. Step 2 is where the real adjudication happens.

Step 2: The Final Merits Determination

Step 2 is the holistic, qualitative evaluation that Step 1 deliberately deferred. At this stage, the adjudicating officer examines the totality of the evidence to determine whether the petitioner has demonstrated:

1. Sustained national or international acclaim in their field
2. Recognition as one of the small percentage who have risen to the very top of the field of endeavor

This review is not bound by the individual criteria. The officer can consider evidence that doesn't fit neatly into any single criterion. The question is: does everything together paint a picture of someone at the very top of their field, with documented recognition that has persisted over time?

This is where the 53.4% Q4 2025 denial rate originates. A petition can technically satisfy three criteria and still be denied at Step 2 if:

• The achievements are narrow in scope (recognized within a small subcommunity but not broadly across the field)
• The evidence shows recognition that peaked briefly rather than sustained acclaim over time
• The documentation lacks independent, external validation — too many letters from people who know the petitioner personally
• The evidence doesn't establish comparative context — meeting a criterion doesn't prove top-of-field standing unless the evidence shows the petitioner is above the norm for their specific field

What "Sustained Acclaim" Actually Requires

"Sustained" means not a one-time event, a brief period of high visibility, or recognition that hasn't been demonstrated to continue. A researcher who published an influential paper five years ago and has not published or been cited significantly since has a sustained acclaim problem. A founder who raised a major funding round but whose company has since faded into obscurity faces similar issues.

"National or international" means the recognition must extend beyond a local community, a single employer, or a narrow technical niche. A software engineer recognized as the best engineer at their company does not have national or international acclaim, even if the company is Fortune 500.

"Top of the field" is the most contested phrase in EB-1A adjudication. USCIS adjudicators apply this standard contextually — what does "top of the field" look like in quantum computing research versus commercial real estate versus athletic performance? The answer varies, and the burden is on the petitioner to establish what the field looks like and where they sit in it.

Why Many Petitions Fail Step 2

Volume substitution for quality. Submitting 15 letters, 50 citations, and 30 publications doesn't satisfy Step 2 if none of it demonstrates top-of-field standing. Adjudicators are increasingly flagging petitions that are high in quantity but low in comparative quality evidence.

Dependent letters crowding out independent ones. A Step 2 review that is primarily supported by letters from the petitioner's former supervisors, advisors, and collaborators will fail. USCIS views dependent letters as inherently interested — these people have professional or personal relationships with the petitioner and a motivation to support the petition. Independent letters from recognized experts who have no personal connection but who have been meaningfully influenced by the petitioner's work carry the most weight.

No comparative benchmarking. A petition that presents evidence of salary, citations, or media coverage without establishing what the norms are for the petitioner's specific field leaves the adjudicator to make uninformed comparisons. If your citation count is 800, is that extraordinary in your field? Compared to what? Step 2 requires the petitioner to supply this context — through expert analysis, field-specific data, or both.

Weak original contributions framing. The "original contributions of major significance" criterion is technically satisfied by showing some original work was done. But at Step 2, the adjudicator needs to see that the field at large recognized and relied upon those contributions. Enterprise adoption, downstream citations by independent researchers, licensing deals, industry standards adoption — these are the kinds of evidence that prove field-level major significance, not just novelty.

The Mukherji Development

In January 2026, the US District Court for the District of Nebraska issued a significant ruling in Mukherji v. Miller. The court held that USCIS's Kazarian Step 2 Final Merits framework — as applied through internal policy memoranda without formal notice-and-comment rulemaking — violated the Administrative Procedure Act. The court found the agency's application of the standard to be arbitrary and capricious in the specific case, where the petitioner had satisfied five criteria and was still denied.

The court ordered the approval of the petition.

The ruling is not binding outside the District of Nebraska. USCIS continues to apply the Kazarian framework at service centers nationwide. However, Mukherji gives attorneys a new litigation tool: challenges to Step 2 denials as procedurally invalid, particularly in cases where four or five criteria are satisfied and the denial rests on a subjective Step 2 determination that appears to add requirements beyond what the statute provides.

For most applicants, the practical implication is not that the framework is disappearing — it's that a documented, strong Step 1 case (satisfying four or five criteria clearly) now has additional legal recourse if Step 2 goes wrong.

Building a Case That Wins at Step 2

Winning at Step 2 requires building a narrative from the beginning — not just collecting evidence and hoping the officer connects the dots.

The petition brief's Step 2 section should:

1. Establish the field and its norms. What does the top tier of your field look like? Who are the recognized leaders? What does their evidence profile resemble?

2. Benchmark your evidence. Place your citation metrics, salary data, media coverage, and organizational role in explicit comparative context. Not "I have 1,200 citations" but "1,200 citations places the petitioner in the 90th percentile of researchers in this subfield with comparable experience, as documented by [source]."

3. Demonstrate sustained recognition over time. Show the arc. Awards from five years ago, publications from three years ago, expert letters describing ongoing influence — the timeline matters.

4. Lead with independent validation. The most powerful Step 2 evidence is documentation that people with no personal relationship to the petitioner have relied on, adopted, or been influenced by the petitioner's work. This is what independent letters are for. Draft them carefully, brief the letter writers to explain how they encountered the petitioner's work independent of any personal relationship, and document the specific ways the work influenced them.

5. Address the "small percentage" standard explicitly. Don't assume the officer knows that 800 citations is impressive in your field. Argue it. Show the distribution. Establish where the petitioner sits.

The Tactical Implication: Criteria Quality Over Quantity

One conclusion practitioners draw from the Kazarian framework is that satisfying five mediocre criteria is not always better than satisfying three strong ones. A petition built around three powerful criteria — each supported by independent expert letters, solid comparative context, and clear evidence of impact — often performs better at Step 2 than a petition cluttered with marginal satisfaction of many criteria where none are particularly compelling.

Quality of evidence governs Step 2. Every piece of evidence in the petition brief should be framed not just to satisfy a criterion but to build the cumulative Step 2 argument that the petitioner is genuinely at the top of their field.

The US EB-1 Extraordinary Ability Green Card Guide breaks down the Kazarian Step 2 analysis in detail — including how to write the Step 2 section of your legal brief, how to brief independent expert letter writers to produce letters that survive Step 2 scrutiny, and how to structure the entire petition to tell a coherent story of sustained acclaim rather than a checklist of accomplishments.

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