EB-1A Extraordinary Ability: The 10 Regulatory Criteria and Kazarian's Two-Prong Review

What changed

Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), recast how USCIS evaluates EB-1A extraordinary-ability petitions. Before Kazarian, adjudicators routinely conflated two questions — has the petitioner satisfied at least three of the ten regulatory criteria, and does the petitioner sit at the top of the field — into one subjective judgment at the evidence-counting stage. The Ninth Circuit said no: the regulation creates a strict antecedent test (counting criteria) followed by a separate, holistic final-merits determination.

USCIS adopted the framework agency-wide in policy memorandum PM-602-0005.1 (December 22, 2010), “Evaluation of Evidence Submitted with Certain Form I-140 Petitions,” and has since codified it in the USCIS Policy Manual, Volume 6, Part F, Chapter 2.

The statutory hook is INA § 203(b)(1)(A), 8 U.S.C. § 1153(b)(1)(A): the alien must demonstrate “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,” seek to continue work in the area of extraordinary ability, and substantially benefit the United States prospectively.

The implementing regulation, 8 CFR 204.5(h)(3), lists ten evidentiary categories. A petitioner who lacks a one-time major internationally recognized award — Nobel, Pulitzer, Olympic gold and the like — must instead document at least three of:

1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
2. Membership in associations that require outstanding achievement, judged by recognized experts.
3. Published material about the petitioner in professional or major trade publications or major media.
4. Service as a judge of the work of others in the same or an allied field.
5. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance.
6. Authorship of scholarly articles in professional or major trade publications or major media.
7. Display of work at artistic exhibitions or showcases.
8. Leading or critical role for organizations with a distinguished reputation.
9. High salary or remuneration relative to others in the field.
10. Commercial success in the performing arts.

Where the listed categories do not readily apply to the petitioner’s occupation, 8 CFR 204.5(h)(4) permits “comparable evidence.” USCIS reiterated the comparable-evidence mechanics in the December 2010 memorandum and again in the current Policy Manual.

Why it matters

Kazarian’s bifurcation matters because it allocates the burden differently at each step. At step one — criteria counting — the adjudicator may only ask whether the evidence facially satisfies the regulation’s plain language. The Ninth Circuit specifically rejected the prior practice of importing reputational or quality judgments into the threshold count, observing that “the AAO’s evaluation rested on an improper understanding of the regulations” (596 F.3d at 1121).

At step two — the final merits determination — USCIS asks whether, taking the qualifying evidence in totality, the petitioner has demonstrated sustained national or international acclaim and is among “that small percentage who have risen to the very top of the field of endeavor” (8 CFR 204.5(h)(2)).

Three operational rules fall out of this:

• Plain-language reading at the count. Two publications in a niche trade journal count as “scholarly articles” under criterion (vi); whether two is enough belongs to step two, not step one. Many denials still collapse the steps. Spotting the collapse is the single most productive ground for appeal.
• Comparable evidence is real. For occupations where the listed criteria do not readily apply — a chef, a software security researcher, a wildland-fire smokejumper — 8 CFR 204.5(h)(4) lets you substitute analogous proof. USCIS requires the petitioner to first explain why the listed criteria do not apply, then offer the substitute.
• Final merits is not arbitrary. USCIS must articulate why the totality fails. A boilerplate denial that does not engage with the totality evidence is appealable; the AAO has remanded numerous final-merits failures on this ground.

Two related authorities frame practice. Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff’d 683 F.3d 1030 (9th Cir. 2012), confirmed Kazarian’s framework controls in subsequent EB-1 adjudication. The AAO’s non-precedent decisions, available on the USCIS administrative-appeals website, interpret individual criteria — particularly the “original contributions of major significance” prong, which is where most well-credentialed researchers’ petitions are won or lost.

Way forward

For practitioners preparing an EB-1A in 2026:

1. Document the field, not just the person. Adjudicators need a baseline to evaluate “very top.” Expert letters that describe the field’s size, structure, and recognition norms — and then place the petitioner against that baseline — are decisive. Letters that only praise the petitioner are weak.
2. Pick three criteria you will win on plain language. Avoid weak criteria that invite step-one denial reasoning. For most petitions that means (i) awards, (iv) judging, (v) original contributions, (vi) scholarly authorship, and (viii) critical role.
3. Separate the briefs. Address each criterion under its own heading; then write a separate final-merits section addressing the totality. Petitions that comingle the analyses invite RFEs.
4. Anticipate the RFE template. USCIS RFEs on EB-1A almost always cite Kazarian and demand additional independent evidence — that judging was “consistent with extraordinary ability,” that a “critical role” had measurable impact, that “original contributions” have been adopted in the field. Pre-empt by including that evidence in the initial filing.
5. Mind the AAO’s evolving “original contributions” gloss. Recent AAO non-precedent decisions require the petitioner to show the contribution has been adopted, cited, or implemented — not merely that it was published.
6. Use comparable evidence carefully. Lead with the explanation of why the listed criteria do not readily apply, then offer the substitute. A bare substitution without that predicate will fail.

For visa-bulletin planning, EB-1 priority dates have moved in and out of retrogression for India and China since 2022 (see the monthly DOS Visa Bulletin). Filing strategy should account for the practical possibility that an approved I-140 will sit for years before a visa number is available — which interacts with H-1B AC21 § 106(a) extensions, adjustment-of-status timing, and child-status-protection-act calculations.

Disclaimer

We’re a software company, not a law firm. Nothing here is legal advice. Immigration adjudication turns on case-specific facts, and the AAO, district courts, and circuit courts continue to refine the Kazarian framework. Consult a licensed immigration attorney before relying on any of the above, and verify every citation against the primary source — the regulation text at 8 CFR 204.5(h), the Kazarian opinion at 596 F.3d 1115, the USCIS Policy Manual Volume 6, Part F, and the AAO decisions on the USCIS administrative-appeals website.