In a decision issued March 4th, the Ninth Circuit Court of Appeals adopted the arguments of the Legal Action Center (LAC), of the American Immigration Council, that the United States 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, involves 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]." The Ninth Circuit also found that the agency impermissibly added another unlawful criteria as well.

This is a good decision and we applaud the verdict. Our Office regularly files EB-1, Extraordinary Ability and Outstanding Researcher/Professor applications and of late, we have found that the standards of adjudication have varied dramatically between the two Service Centers (Nebraska and Texas). Seeking more than what is required by the regulations is a common problem as the Service Centers seek to distinguish and isolate truly extraordinary cases. One reason for this trend is the sudden spike in such applications due to EB2/EB3 backlogs for India/China. We routinely review and provide clients with the best available option in such cases. We encourage you to contact us for an appointment if you believe you qualify for any EB-1 category.

USCIS announced today that effective June 29, 2009, it will resume Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker, in accordance with 8 CFR 103.2(f)(2). USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker, involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals. Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver. The press release for USCIS Announces Resumption of Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker is available.

The State Department has released the June Visa Bulletin. Notes to the Visa Bulletin state the following about INDIA Employment Based Second Preference Category: D. RETROGRESSION OF THE INDIA EMPLOYMENT SECOND PREFERENCE CUT-OFF DATE It has been necessary to retrogress the India Employment Second preference cut-off date for June to keep visa issuances within the annual category numerical limit. At this time, it is not possible to estimate whether or not this retrogression will apply throughout the remainder of the fiscal year. E. EMPLOYMENT-BASED VISA AVAILABILITY DURING THE REMAINDER OF FISCAL YEAR 2009 Applicant demand for numbers, primarily for adjustment of status cases at Citizenship and Immigration Services offices, has been extremely heavy throughout the year. As a result, visa availability during the final quarter could become limited as categories approach their annual numerical limits. Therefore, visa availability throughout the remainder of the year cannot be guaranteed, and the establishment of cut-off dates, or retrogression of existing cut-off dates, cannot be ruled out.

Beginning March 2, 2009, U.S. Citizenship and Immigration Services (USCIS) will expand Premium Processing Service for designated Forms I-140 (Immigrant Petition for Alien Worker) to include alien beneficiaries who have reached, or are reaching, their limitation of stay in H-1B nonimmigrant status. Currently, only certain alien beneficiaries who are in H-1B nonimmigrant status at the time of filing may request premium processing for Form I-140. Click here for news release.

AILA reports that USCIS will resume premium processing for I-140s in limited circumstances. As previously reported, AILA has been working with USCIS to address the situation of "H-ing out", where an individual needs the approved I-140 to receive additional H time under AC21. Premium processing should be available for those beneficiaries whose H will expire within 60 days of filing the request, and who need the I-140 approval to become eligible for that additional H time. An official notice has not yet been issued by USCIS.
-Courtesy AILA