Conflating Kazarian Step One and Step Two
This objection refuses to credit a regulatory criterion at the counting stage unless the petitioner already proves top-of-field impact — importing the final-merits question into the threshold. Both federal courts and the AAO treat the two steps as distinct: meeting three criteria is an evidentiary threshold, and the “very top of the field” assessment is a separate, later inquiry.
Ryan Locke, Attorney, Locke Immigration Law
Educational reference — general information about USCIS practice, not legal advice
What this objection actually means
The EB-1A analysis has two steps, and they ask different questions. Step one is a count: did the petitioner submit evidence that objectively meets at least three of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) (or a single major, internationally recognized award)? Step two is the “final-merits determination,” where the officer weighs the whole record to decide whether the person has sustained acclaim and is among the small percentage at the very top of the field. The USCIS Policy Manual sets out this same two-step review and tells officers that at step one they “should not yet make a determination regarding whether or not the person is one of that small percentage who have risen to the very top of the field.”
This objection collapses the two. It declines to credit a criterion at the counting stage — most often the original-contributions criterion — unless the petitioner has already shown that the work reached the “very top of the field” or “major significance” across the field. Having applied a step-two test at step one, the officer then finds too few criteria met and never reaches a genuine final-merits analysis at all. The result is that no volume of qualifying evidence can clear the threshold, because the threshold has been redefined as the ultimate question.
A related version misattributes the governing law. The demanding “small percentage … very top of the field” language lives in the definition of extraordinary ability at 8 C.F.R. § 204.5(h)(2); the two-step test itself comes from case law, not from the initial-evidence provision at § 204.5(h)(3). Presenting that definitional standard, or the judicial two-step gloss, as if it were the command of the criterion being counted lets the objection import step-two weight into a step-one count. Because both steps are governed by the preponderance-of-the-evidence standard, demanding near-certainty at the threshold also quietly raises the burden of proof above what the law requires.
What the law and USCIS guidance require
The two-step framework comes from Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), which drew a bright line between the counting stage and the merits stage. The court held that “neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5,” and explained that considerations bearing on standing — there, whether the research community had reacted to a petitioner's articles — “might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor,” but “are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence.” 596 F.3d at 1121. Importing the merits question into the count is the error Kazarian identifies.
District courts have applied that line directly to the conflation move. In Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff'd, 683 F.3d 1030 (9th Cir. 2012), the court held that “satisfying three of them is merely an evidentiary threshold,” and that “[t]he inquiry into sustained acclaim is part of the ‘final merits determination,’” not the threshold criteria. Id. at 1346–47. In Eguchi v. Kelly, No. 3:16-CV-1286-D (N.D. Tex. June 23, 2017), the court found USCIS's reasoning “impermissibly conflates its step one analysis with step two,” explaining that “[t]he submission of evidence is a procedural question,” and that at step one the petitioner “is not obligated to prove that his salary illustrates that he is one of a small percentage who have risen to the very top of the field of endeavor and enjoy sustained national or international acclaim.”
Zizi v. Cuccinelli, No. 20-cv-07856-SVK (N.D. Cal. June 24, 2021), addresses the original-contributions version of this objection head-on. The court held that the agency “appears to have conflated the step 1 (evidentiary) and step 2 (merits) inquiries under Kazarian,” and — decisively for the drafting practice — that the Government “cites no legal authority for its proposition that an applicant must ‘demonstrate how his work already qualified as a contribution of major significance’ to satisfy his initial evidentiary burden under Kazarian.” In other words, prospective or not-yet-field-wide significance can still satisfy the criterion at the threshold; the “already achieved major significance” demand belongs, if anywhere, at final merits.
None of this abolishes the second step. The Fifth Circuit in Amin v. Mayorkas, 24 F.4th 383 (5th Cir. 2022), upheld the two-step framework and confirmed that meeting three criteria does not by itself establish eligibility — a genuine final-merits determination remains legitimate. The point is narrower: the two inquiries must stay in their lanes. What crosses the line is answering the step-two question (top of field, sustained acclaim, field-wide major significance) at the step-one count, or never conducting the step-two analysis after refusing to count criteria on step-two grounds.
Both steps are governed by the preponderance-of-the-evidence standard — “more likely than not.” Matter of Chawathe, 25 I&N Dec. 369, 375–76 (AAO 2010), holds that “[e]ven if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘more likely than not’ or ‘probably’ true, the … petitioner has satisfied the standard of proof.” The Policy Manual applies that standard at both steps. Demanding proof approaching certainty at the threshold therefore compounds the conflation with a second error — applying a quantum of proof higher than preponderance, which the AAO's own precedent forecloses.
Governing authorities
- 8 C.F.R. § 204.5(h)(2)
- The definition of extraordinary ability — where the “small percentage … very top of the field” language actually appears. It is definitional, not an independent step-one prong to be proven for each criterion.
- 8 C.F.R. § 204.5(h)(3)
- The initial-evidence criteria. Step one asks only whether evidence objectively meets at least three of these (or a one-time major award) — not whether it proves top-of-field standing.
- Kazarian v. USCIS, 596 F.3d 1115, 1119–22 (9th Cir. 2010)
- Source of the two-step framework; bars “novel substantive or evidentiary requirements” at the “antecedent procedural question” and reserves top-of-field considerations for the final-merits determination (pin cite 1121).
- Rijal v. USCIS, 772 F. Supp. 2d 1339, 1346–47 (W.D. Wash. 2011), aff'd, 683 F.3d 1030 (9th Cir. 2012)
- Meeting three criteria is “merely an evidentiary threshold”; the “sustained acclaim” inquiry belongs to the final-merits step, not the threshold criteria.
- Eguchi v. Kelly, No. 3:16-CV-1286-D (N.D. Tex. June 23, 2017)
- USCIS reasoning that a criterion must itself show “very top of the field” at step one “impermissibly conflates its step one analysis with step two”; submission of evidence is a procedural question.
- Zizi v. Cuccinelli, No. 20-cv-07856-SVK (N.D. Cal. June 24, 2021)
- The agency “conflated the step 1 (evidentiary) and step 2 (merits) inquiries” and cited “no legal authority” for requiring proof that work “already qualified as a contribution of major significance” to meet the initial burden.
- Amin v. Mayorkas, 24 F.4th 383 (5th Cir. 2022)
- Confirms the two-step framework is valid and that meeting three criteria does not automatically establish eligibility — the boundary showing that a genuine step-two analysis is legitimate, only its importation into step one is not.
- Matter of Chawathe, 25 I&N Dec. 369, 375–76 (AAO 2010)
- Preponderance of the evidence (“more likely than not”) governs; “even if the director has some doubt,” probative and credible evidence satisfies the standard — so near-certainty may not be demanded at either step.
- USCIS Policy Manual, Vol. 6, Pt. F, Ch. 2
- Sets out the two-step review under a preponderance standard and instructs that at step one officers “should not yet make a determination” about whether the person is at the very top of the field or has sustained acclaim.
- AILA Practice Pointer, “Golani, Scripps, and Using Judicial Decisions in the O and EB-1 Context” (posted Sept. 10, 2024; AILA Doc. No. 24091003)
- Explains that the preponderance standard is a guardrail: USCIS may not use the final-merits analysis to upend or dismiss, without specific reasons, probative evidence it found met step one.
How the AAO has analyzed this evidence
Drawn from de-identified, publicly available AAO decisions. These illustrate how the Administrative Appeals Office has analyzed the evidence in front of it — not the odds of any particular case.
The AAO has corrected the reverse-direction version of the same error — carrying a criterion the director already found met back into the final-merits step and re-testing its “major significance.” It held that once the original-contributions criterion is satisfied, the second-step inquiry must turn to standing and sustained acclaim, not repeat the criterion. That confirms the two questions are distinct: “major significance” is answered at the count, “very top of the field” at final merits.
“The evidentiary criterion under 8 C.F.R. § 204.5(h)(3)(v) requires original contributions of major significance, which the Acting Director held was met; thus, the inquiry in the final merits should have focused on whether the evidence in the record establishes that she has risen to the very top of the field and that she has sustained national or international acclaim.”
The AAO has held that officers may require at the counting stage only what the regulation specifies, and that layering on extra proof exceeds the criterion. The principle is the engine of the conflation objection: demanding a step-two showing (here, media proof of an award's stature) to satisfy a step-one criterion adds a requirement the regulation does not contain and “exceeds the scope” of that criterion.
“While media coverage is one type of evidence that may establish whether the prizes or awards are nationally or internationally recognized, this is not a specific requirement of the regulation and exceeds the scope of this criterion.”
The AAO has remanded where a director acknowledged in the RFE that criteria were met “by the plain language of the regulation,” then failed to count them toward the three-criterion threshold and never explained the reversal. This is conflation in its practical form — criteria that objectively cleared step one were withheld from the count without a reasoned step-one basis, short-circuiting the move to final merits.
“Although he indicated in the RFE that the Petitioner satisfied the published material and high salary criteria, the Director did not consider them in determining whether the Petitioner fulfilled at least three of the evidentiary criteria, nor did he explain why the Petitioner did not meet them in his final decision.”
The AAO has also described what the final-merits step is supposed to do once the count is complete — weigh the totality of a beneficiary's accomplishments — which is precisely the analysis skipped when an officer resolves everything at step one. Read together, these decisions frame the two steps as sequential and separate: an objective count, then a holistic merits weighing under the preponderance standard.
“In a final merits determination, the Director must analyze all of a beneficiary's accomplishments and weigh the totality of the evidence to determine if their successes are sufficient to demonstrate that they have extraordinary ability in the field of endeavor.”
The stock language USCIS uses for this objection
When an RFE or denial reaches this objection, it tends to use one of these phrases. Each is decoded from the firm's RFE library — what it means, the standard it invokes, and the authority behind it.
“Even though the petitioner has satisfied at least three criteria, the totality of the evidence does not establish eligibility.”
USCIS uses a two-step framework: first it counts whether at least three regulatory criteria are met, then it makes a separate 'final merits determination' weighing all the evidence together. Here USCIS is saying that clearing the three-criteria bar is only step one, and on the whole record the person still has not been shown to be among the very top of the field. Courts have cautioned USCIS not to collapse the two steps by importing final-merits judgments into whether a single criterion is met.
- The standard
- Satisfying at least three criteria is an evidentiary threshold only; USCIS then makes a final merits determination weighing the totality of the evidence.
- Authority
- Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)
“Considering the petition in its entirety, the beneficiary has not demonstrated sustained acclaim and standing at the top of the field.”
USCIS is invoking the second step of its review, where it looks at everything together rather than criterion-by-criterion. This 'totality' language frames a holistic judgment about whether the whole record adds up to top-of-field standing and sustained acclaim. The same directive cuts both ways: USCIS is expected to weigh — not silently discard — the probative evidence it already credited at step one.
- The standard
- At the final merits step the officer evaluates the evidence together and considers the petition in its entirety to decide whether the person has sustained acclaim and is among the small percentage at the very top of the field.
- Authority
- USCIS Policy Manual, Vol. 6, Pt. F
“The petitioner has not established that the beneficiary is one of that small percentage who have risen to the very top of the field of endeavor.”
USCIS is saying the evidence shows an accomplished professional but does not place the person at the very apex of the field. The 'small percentage at the very top' phrase comes directly from the regulation defining extraordinary ability. It is a comparative judgment about how the beneficiary ranks against peers, made across the whole record rather than from any single document.
- The standard
- The regulation requires a level of expertise indicating the individual is one of that small percentage who have risen to the very top of the field of endeavor.
- Authority
- 8 CFR 204.5(h)(2)
“The record does not establish a degree of expertise significantly above that ordinarily encountered in the field.”
USCIS is saying that even though individual documents were submitted, the record taken as a whole does not convince the officer that the person stands out well above the ordinary practitioner in the field. This is final-merits language, where USCIS weighs all the evidence together rather than checking off criteria. USCIS is describing a shortfall in the overall picture, not in any single document.
- The standard
- On the totality of the evidence the petitioner must show a degree of expertise significantly above that ordinarily encountered in the field.
- Authority
- USCIS Policy Manual, Vol. 6, Pt. F
“Although the petitioner meets the original-contributions criterion, the contributions are not significant enough to establish extraordinary ability on the totality of the evidence.”
USCIS is re-examining, at the final merits step, whether a contribution it already credited under 8 C.F.R. 204.5(h)(3)(v) is 'major' enough. The AAO has held this is error: once the criterion is met, 'the inquiry in the final merits should have focused on whether the evidence in the record establishes that she has risen to the very top of the field and that she has sustained national or international acclaim' — not whether the contributions are again of major significance. The AAO also held USCIS cannot compare a mid-career researcher unfavorably to senior letter-writers, agreeing such a comparison is 'an inaccurate assessment due to the longevity of the careers these individuals have had in the field.'
- The standard
- Once a regulatory criterion is satisfied at step one, the final merits determination weighs the totality of the evidence for sustained acclaim and top-of-field standing; it does not re-litigate whether the individual criterion was met.
- Authority
- In re Environmental Engineering (AAO Dec. 20, 2018); Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)
“The beneficiary's judging activities are not at a level consistent with sustained national or international acclaim.”
USCIS is adding a prestige or acclaim threshold to the judging criterion at step one. The AAO rejected this: 'The Petitioner does not need to establish that his judging activities are at a level consistent with national or international acclaim in order to satisfy the plain language of this criterion.' The criterion requires only documented participation as a judge of the work of others in the same or an allied field; the acclaim analysis belongs at the final merits step, not the criterion-counting step.
- The standard
- The judging criterion requires only participation as a judge of others' work in the same or an allied field; whether that judging reflects national or international acclaim is a final-merits question, not a step-one requirement.
- Authority
- In re Music (AAO Aug. 10, 2020); 8 CFR 204.5(h)(3)(iv)
What responses to this objection generally document
General patterns seen in effective responses to this objection. This is educational context, not a recommendation about any specific case.
- •Responses generally separate the analysis explicitly into the two steps — a criterion-by-criterion mapping of the record to 8 C.F.R. § 204.5(h)(3) for the count, then a distinct final-merits narrative — so the record shows which evidence answers which question and makes any conflation visible on its face.
- •For the counting stage, they generally quote the operative regulatory text of each criterion and show the evidence meets it as written, pointing out where an RFE has added a top-of-field or “major significance” overlay that the criterion's language does not contain.
- •They generally locate the “small percentage … very top of the field” language in the definition at § 204.5(h)(2) and note that the two-step test derives from Kazarian, so that top-of-field weight is placed at final merits rather than demanded for each criterion at the threshold.
- •They generally restate the preponderance standard — “more likely than not,” per Matter of Chawathe — to keep the threshold from being raised to near-certainty, and to frame prospective or emerging significance as sufficient at step one even where field-wide adoption is still developing.
- •Where a director has acknowledged that a criterion was met and then declined to count it, responses generally surface that acknowledgment and ask for either the count or a reasoned, criterion-specific explanation for the reversal.
- •Because a genuine final-merits step remains legitimate (Amin v. Mayorkas), strong responses generally still build the step-two record — field-normalized impact data, expert context, evidence of recognition — rather than resting on the criteria count alone, while insisting that step two, not step one, is where that weighing occurs.
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