Kazarian v. USCIS is the most cited case in EB-1A practice, and the thing most worth knowing about it is that the petitioner lost. What survives is not a result but a method: counting the criteria and weighing the record are two different questions, asked in that order.
- Kazarian v. USCIS, Ninth Circuit, decided March 4, 2010
- The denial was affirmed; the petitioner did not obtain the visa
- Two of ten types of evidence submitted, where three are required
- The AAO made an error, and the court called it harmless
- The framework, not the outcome, is what USCIS adopted
What the case was about
Poghos Kazarian, a theoretical physicist, self-petitioned for the extraordinary ability classification. The petition was denied, the Administrative Appeals Office dismissed his appeal, the district court ruled against him, and he appealed to the Ninth Circuit.
The court's disposition is one word at the end of the opinion: AFFIRMED. Circuit Judge Pregerson wrote separately.
The reason is arithmetic:
"Although Kazarian appears to be a well-respected, promising physicist, who may well have been able to qualify for an 'exceptional ability' visa, he instead applied for an 'extraordinary ability' visa, and presented only two of the types of evidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x), and the 'extraordinary ability' visa regulations require three." Kazarian v. USCIS, 9th Cir. 2010
That matters for how the case gets used. It is not authority that a hard case should have been approved. It is authority about how the analysis is meant to be structured, delivered in a case that failed the structure's first step.
The distinction the court drew
The passage that made the case famous separates two questions that had been running together in adjudications. On one side sits what the court called "the final merits determination of whether a petitioner is 'at the very top of his or her field of endeavor'". On the other sits "the antecedent procedural question of whether the petitioner has provided at least three types of evidence".
Before Kazarian, officers routinely folded the quality judgement into the counting step: an article was not really a scholarly article because the journal was not prestigious enough, a membership did not really count because the association was not selective enough in the officer's view. The effect was that a petition could fail the three-criteria threshold on grounds that had little to do with what the criterion actually says.
The court's answer was that the quality judgement is legitimate but belongs in the second step, applied to the record as a whole, rather than folded into the first.
The error, and why it was harmless
The court did find that the agency got something wrong:
"The AAO's conclusion that Kazarian presented zero types of evidence was in error, but the error was harmless." Kazarian v. USCIS, 9th Cir. 2010
Harmless because two is still not three. This is the part of the opinion that gets the least attention and is among the most useful to understand. Winning an argument about how a criterion should have been assessed does not help if the corrected count still falls short. The counting step is not a good place to be marginal.
Part of the underlying dispute concerned the judging criterion, where the record involved reviewing student diploma works at Yerevan State University. The lesson practitioners drew is not that judging is easy or hard to establish, but that a criterion argued on thin facts is a criterion that may not survive, and a petition standing on exactly three has no margin. Which criteria to build first is the practical response to that.
The line about novel requirements
The other passage that appears constantly in responses to requests for evidence:
"neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5" Kazarian v. USCIS, 9th Cir. 2010
The court cited its earlier decision in Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008), for that proposition.
It is a real constraint and it is frequently invoked, but it is worth being precise about what it does. It says an officer cannot invent a requirement the regulation does not contain. It does not say an officer must accept weak evidence, and it does not touch the second step, where weighing the record is exactly the job. Citing it against a final merits determination misreads it.
How USCIS turned it into policy
The Ninth Circuit binds federal courts in the Ninth Circuit. Kazarian shapes adjudications nationwide because USCIS adopted the two-step approach in the Policy Manual, which directs officers to determine first whether the evidence meets the criteria and then to evaluate the evidence in its totality.
That is why the final merits determination is treated as a distinct stage of the analysis rather than a summary of the first. It is also why petitions can and do meet three criteria and still be denied: the second question was answered no.
The practical consequence for building a case is that two different things have to be true. The exhibits have to be the kind of thing the criteria describe, and the record as a whole has to read like sustained acclaim. Evidence that satisfies the first without contributing to the second passes the count and loses the case.
- Do not cite it as a winning case; the petitioner lost
- Use the two-step framing to keep counting arguments separate from quality arguments
- Use the novel-requirements line where an officer added a requirement the regulation lacks
- Do not use it to resist a final merits determination, which the case endorses
- Aim past three criteria, because a harmless error is still an error you lose on
How this framework applies to a particular record, and what a specific denial or request for evidence turns on, is legal work for your attorney. Responding to a request for evidence covers the shape of that process.
Sources
All accessed 1 September 2026.
- Kazarian v. USCIS, No. 07-56774 (9th Cir. Mar. 4, 2010), United States Court of Appeals for the Ninth Circuit. All quotations above are from the opinion.
- 8 CFR 204.5(h), eCFR. The definition, the three-criteria threshold, and the ten types of evidence.
- USCIS Policy Manual, Volume 6, Part F, Chapter 2. The two-part adjudication described in agency guidance.
Kazarian is a Ninth Circuit decision. Its nationwide effect comes through USCIS policy rather than through binding precedent outside that circuit.
This article describes a decision in general terms. It is not a substitute for advice from your attorney about your own case.
Frequently asked questions
What did Kazarian v. USCIS decide?
The Ninth Circuit distinguished the antecedent procedural question of whether the petitioner has provided at least three types of evidence from the final merits determination of whether a petitioner is at the very top of his or her field of endeavor. It affirmed the denial.
Did Kazarian win his case?
No. The court affirmed and the denial stood. It found that Kazarian presented only two of the ten types of evidence and that three are required.
What is the two-step framework?
Step one counts whether the petition meets at least three of the ten regulatory criteria. Step two weighs all the evidence together to decide whether it shows sustained acclaim and standing at the very top of the field.
Can an officer add requirements not in the regulation?
The court stated that neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR 204.5. That language is frequently cited in responses to requests for evidence.
Is Kazarian binding everywhere?
It is a Ninth Circuit decision, so it binds federal courts in that circuit. Its practical reach comes from USCIS adopting the two-step approach in its own policy guidance, which applies to adjudications nationwide.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.