Document dossier

PM-602-0005.1: how a USCIS officer evaluates an I-140

Updated: September 9, 2026Author: Alina Kanametova

«Purpose This Policy Memorandum (PM) provides guidance regarding the analysis that U.S. Citizenship and Immigration Service (USCIS) officers who adjudicate these petitions should use when evaluating evidence submitted in support of Form…»

The document’s opening paragraph · Policy Memorandum PM-602-0005.1 "Evaluation of Evidence Submitted with Certain Form I-140 Petitions"

Source

Document: Policy Memorandum PM-602-0005.1 "Evaluation of Evidence Submitted with Certain Form I-140 Petitions"
Issuer: USCIS, Office of the Director
Date: 2010-12-22
Size: 41 paras · 62k chars + 45 paras · 66k chars

Document structure

Purpose
Scope
Authority
Background
Policy
Proof
Implementation
AFM 22.2(i)(1)(A): Part One / Part Two

Key passages of the document

Verbatim paragraphs of the source; paragraph numbers refer to the archived text.

Why the memo was issued

Purpose This Policy Memorandum (PM) provides guidance regarding the analysis that U.S. Citizenship and Immigration Service (USCIS) officers who adjudicate these petitions should use when evaluating evidence submitted in support of Form I-140, Immigrant Petition for Alien Worker, filed for:  Aliens of Extraordinary Ability under section 203(b)(1)(A) of the Immigration and Nationality Act (INA);  Outstanding Professors or Researchers under section 203(b)(1)(B) INA; and  Aliens of Exceptional Ability under section 203(b)(2) INA. The purpose of this PM is to ensure that USCIS processes Form I-140 petitions filed under these employment-based immigrant classifications with a consistent standard.

Paragraph 4, 5, 6 · memorandum PM-602-0005.1

What it rescinds and supersedes

Scope This PM rescinds and supersedes all previously published policy guidance 2 issued by USCIS and the legacy Immigration and Naturalization Service (INS) specific to the evaluation of required 1 See USCIS memorandum, Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions; Adjudicators Field Manual (AFM) Update to Chapter 22.2(b)(5) (AD09-37), dated August 6, 2009. It is noted on page 7 of that memorandum that SII determinations could only be made in cases where the labor certification application had been approved prior to the transfer of ownership.

Paragraph 9 · memorandum PM-602-0005.1

The very high standard Congress intended

Background USCIS and INS have consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant classifications as aliens of extraordinary ability. 3 In order to qualify for admission in this classification, an alien must, among other things, demonstrate sustained national or international acclaim and that his or her achievements have been recognized in the alien’s field of expertise in accordance with INA 203(b)(1)(A). Qualification under this classification is reserved for the small percentage of individuals at the very top of their fields of endeavor.8 CFR 204.5(h)(2).

Paragraph 13 · memorandum PM-602-0005.1

The ten criteria of 8 CFR 204.5(h)(3)

The regulation at 8 CFR 204.5(h)(3), published in the Federal Register at 56 Fed. Reg. 60897 (Nov. 29, 1991), provides that a petition for an alien of extraordinary ability must be accompanied by initial evidence that the alien has achieved the requisite acclaim and recognition in the alien’s field of expertise. Such evidence must be either a one-time achievement (that is, a major, internationally recognized award) or at least three out of the ten other types of evidence listed in the regulation (e.g., scholarly articles, high salary, commercial successes).

Paragraph 14 · memorandum PM-602-0005.1

Kazarian: what the Ninth Circuit held

In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the Administrative Appeals Office’s (AAO) dismissal of a petitioner’s appeal of a denial of a petition filed under 203(b)(1)(A) of the INA. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although affirming the decision, the Ninth Circuit found that the AAO erred in its evaluation of the initial evidence submitted with the petition pursuant to 8 CFR 204.5(h)(3). Specifically, the Ninth Circuit concluded that while USCIS may have raised legitimate concerns about the significance of the evidence submitted, those concerns should have been raised in a subsequent “final merits determination” of whether the petitioner has the requisite extraordinary ability. Id. at 1122. The Ninth Circuit further stated that the concerns were “not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence.” Id. at 1121.

Paragraph 20 · memorandum PM-602-0005.1

The two-part approach USCIS adopted

USCIS agrees with the Kazarian court’s two-part adjudicative approach to evaluating evidence submitted in connection with petitions for aliens of extraordinary ability: (1) Determine whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for each type of evidence listed at 8 CFR 204.5(h)(3); and (2) Determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the extraordinary ability immigrant classification during a final merits determination. By contrast, the approach taken by USCIS officers in Kazarian collapsed these two parts and evaluated the evidence at the beginning stage of the adjudicative process, with each type of evidence being evaluated individually to determine whether the self-petitioner was extraordinary.

Paragraph 21 · memorandum PM-602-0005.1

Why the two-part analysis simplifies adjudication

The two-part adjudicative approach to evaluating evidence described in Kazarian simplifies the adjudicative process by eliminating piecemeal consideration of extraordinary ability and shifting the analysis of overall extraordinary ability to the end of the adjudicative process when a determination on the entire petition is made (the final merits determination). Therefore, under this approach, an objective evaluation of the initial evidence listed at 8 CFR 204.5(h)(3) will continue as before; what changes is when the determination of extraordinary ability occurs in the adjudicative process. USCIS believes that this approach will lead to decisions that more clearly explain how evidence was considered, the basis for the overall determination of eligibility (or lack thereof), and greater consistency in decisions on petitions for aliens with extraordinary ability.

Paragraph 22 · memorandum PM-602-0005.1

Policy: how officers must evaluate evidence

Policy In order to promote consistency in decision-making, USCIS officers should use a two-part approach for evaluating evidence submitted in support of all petitions filed for Aliens of Extraordinary Ability, Outstanding Professors or Researchers, and Aliens of Exceptional Ability. USCIS officers should first objectively evaluate each type of evidence submitted to determine if it meets the parameters applicable to that type of evidence described in the regulations (also referred to as “regulatory criteria”). USCIS officers then should consider all of the evidence in totality in making the final merits determination regarding the required high level of expertise for the immigrant classification.

Paragraph 26 · memorandum PM-602-0005.1

Standard of proof: preponderance of the evidence

Proof USCIS officers are reminded that the standard of proof for most administrative immigration proceedings, including petitions filed for Aliens of Extraordinary Ability, for Outstanding Professors or Researchers, and for Aliens of Exceptional Ability is the “preponderance of the evidence” standard. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). Thus, if the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is “more likely than not” or “probably true,” the petitioner has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989); see also U.S. v. CardozoFonseca, 480 U.S. 421 (1987) (discussing “more likely than not” as a greater than 50% chance of an occurrence taking place).

Paragraph 27 · memorandum PM-602-0005.1

When the criteria are met: the final merits determination

If a petitioner provides initial evidence (including but not limited to articles, publications, reference letters, expert testimony, support letters) that is probative (e.g., does not merely recite the regulations) and credible, USCIS officers should objectively evaluate such initial evidence under a preponderance of the evidence standard to determine whether or not it is acceptable. In other words, USCIS officers may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations, but instead should evaluate the evidence to determine if it falls within the parameters of the regulations applicable to that type of evidence by a preponderance of the evidence standard. USCIS officers should then evaluate the evidence together when considering the petition in its entirety to determine if the petitioner has established by a preponderance of the evidence that the self-petitioner or beneficiary has the required high level of expertise for the immigrant classification.

Paragraph 28 · memorandum PM-602-0005.1

The revised AFM 22.2(i)(1)(A)

(A) Evaluating Evidence Submitted in Support of a Petition for an Alien of Extraordinary Ability. 8 CFR 204.5(h)(3) and (4) describe the various types of evidence that must be submitted in support of an I-140 petition for an alien of extraordinary ability. In general, the petition must be accompanied by initial evidence that: (a) the alien has sustained national or international acclaim; and (b) the alien’s achievements have been recognized in the field of expertise. This initial evidence must include either evidence of a one-time achievement (i.e., a major international recognized award, such as the Nobel Prize), or at least three of the types of evidence listed in 8 CFR 204.5(h)(3). USCIS officers should use a two-part analysis to evaluate the evidence submitted with the petition to demonstrate eligibility under 203(b)(1)(A) of the INA. First, USCIS officers should evaluate the evidence submitted by the petitioner to determine, by a preponderance of the evidence, which evidence objectively meets the parameters of the regulatory description applicable to that type of evidence (referred to as “regulatory criteria”). Second, USCIS officers should evaluate the evidence together when considering the petition in its entirety for the final merits determination regarding the required high level of expertise for the immigrant classification.

Paragraph 32, 33 · memorandum PM-602-0005.1

Part One: does the evidence meet a criterion

Part One: Evaluate Whether the Evidence Provided Meets any of the Regulatory Criteria. The determination in Part One is limited to determining whether the evidence submitted with the petition is comprised of either a one-time achievement (that is, a major, internationally recognized award) or at least three of the ten regulatory criteria listed at 8 CFR 204.5(h)(3) (as discussed below), applying a preponderance of the evidence standard. Note: While USCIS officers should consider the quality and caliber of the evidence when required by the regulations to determine whether a particular regulatory criterion has been met, USCIS officers should not make a determination regarding whether or not the alien is one of that small percentage who have risen to the very top of the field or if the alien has sustained national or international acclaim in Part One of the case analysis.

Paragraph 34, 35 · memorandum PM-602-0005.1

One piece of evidence, several criteria

Note: In some cases, evidence relevant to one criterion may be relevant to other criteria set forth in 8 CFR 204.5(h)(3).

Paragraph 38 · memorandum PM-602-0005.1

What the chats ask about this topic

8×what is final merits
6×how to process final merits
3×what is final merits?
2×what is Final merits
2×What needs to be written in final merits

Community answers

If USCIS counted a criterion based on media but mentioned only one publication out of several in the decision, do you need to address that?: If the criterion has already been accepted, there is usually no need to argue that the officer did not list all the evidence. In an RFE or NOID response, it is better to focus on the unaccepted criteria and the final merits analysis, and to mention additional publications only briefly as further evidence of sustained recognition.

Myths and reality

Misconception: If the required number of criteria is counted for EB-1A or O-1, the case is almost required to be approved; or the opposite misconception: Final Merits is an arbitrary second denial that USCIS can use to wipe out any counted criteria without much logic.

In reality: For EB-1A, after the formal criteria review, USCIS does conduct a final assessment of the totality of the evidence: Final Merits. Meeting 3+ criteria allows the case to move to this assessment, but it does not by itself guarantee approval. At the Final Merits stage, the officer looks at whether the materials as a whole prove sustained acclaim, a high level of recognition, and membership in the small percentage of specialists at the very top of the field. At the same time, a denial should not simply recount criteria that were already credited or express unsupported disagreement. It must explain why the evidence, taken together, is insufficient. For O-1, the logic is similar in substance: USCIS looks at the formal items and at the level of extraordinary ability, although the terminology and standard differ from EB-1A. For EB-2 NIW, the issue is structured differently: the key elements are advanced degree or exceptional ability and the national importance test, not EB-1A Final Merits.

Rules and tips from the chats

tipAn RFE for O-1 or an immigrant petition needs to be broken down point by point, not answered with generic language. It is important to understand which criteria or final merits elements are being questioned, and to add exactly the missing evidence, explanations, and independent corroboration.
rule[specificity] To strengthen final merits, it is more useful to explain why the achievements place the applicant at a high level in the field than to simply add an emphatic statement that the applicant belongs at the top.

Cases from the community

EB-1A or EB-2 NIW · not specified · outcome not stated

After an unfavorable petition decision, the applicant challenged the denial through an administrative appeal; the appeal took about a year and was sustained, but the case was then returned for additional review.

What they did: Filed an appeal with the administrative body, secured reconsideration, and then waited a long time for the immigration service's final merits review.

Questions and answers on the site

Distilled from the public community chats, anonymised; corpus as of June 2026. These are participants' observations, not legal advice and not USCIS statistics.

Terms: kazarian · final-merits · extraordinary-ability · sustained-acclaim · comparable-evidence

Other dossiers

Excerpts are shown as they appear in the documents; translations are not official. Reference information, not legal advice and not a USCIS decision. uscis.gov.