U.S. Citizenship and Immigration Services (USCIS) has released statistics on approval and denial rates for Form I-140 petitions involving Extraordinary Ability Aliens and Outstanding Professors/Researchers. These immigrant visa petitions are classified in the first employment based visa preference category (EB-1) and many physicians have filed or are contemplating filing EB1 petitions.

According to USCIS, I-140s filed for Extraordinary Ability Aliens have seen a steady increase in approval rates, from 49% to 62%, between 2007 and 2010. The approval rate during these years increased from 49% to 62%. Extraordinary Ability Aliens must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.  However, this spike in approval rates was for the fiscal year which ended on September 30, 2010.  Unfortunately, EB1 denials for physician and others appear to have increased dramatically in the wake of the decision of the United States Court of Appeals for the 9th Circiut, Matter of Kazarian, 580 F.3d 1030 (9th Cir. 3/4/2010).  Although attorneys and brilliant foreign nationals were initially elated at the decision which 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 euphoria was short lived as the net result of the decision was that the Texas Service Center has implemented a “Kazarian” checklist and no case may be approved without the specific concurrence of a supervisor.  It bodes ill that the Kazarian case still gave plenty of leeway to deny an EB1 case even where three or more criteria are met.  Worse yet, USCIS is reopening even approved EB1 cases and either revoking the approvals or issuing Notices of Intent to Revoke under the Kazarian case law.  So we would alert our clients and other readers to be alert to USCIS revoking their approved and hard won EB1 petitions.

EB-1 filings for Outstanding Professors and Researchers show relatively consistent approval rates of 91% to 95% in the covered years, but USCIS statistics evidence a slight decrease in approval rates for these petitions over the past five years. In 2005 and 2006, the approval rate was 94% and 95%, respectively, whereas in 2010, USCIS reports an approval rate of 91%. An EB-1 Outstanding Professor or Researcher must demonstrate international recognition for outstanding achievements in a particular academic field.

Table A provides data on the approval and denial for the E-11 classification (Alien of Extraordinary Ability) of the Form I-140, Immigrant Petition for Alien Workers.

Table A: I-140 E-11 Approval/Denial by Fiscal Year 2005 to 2010 

Table B provides data on the approval and denial for the E-12 classification (Outstanding Professor or Researcher) of the Form I-140, Immigrant Petition for Alien Workers.

 Table B: I-140 E-12 Approval/Denial by Fiscal Year 2005 to 2010