Court: AAO Flubs Kazarian Two-Step in EB-1A Case: Zizi v. Cuccinelli

Zizi v. Cuccinelli

"Plaintiff, a citizen of Belgium, is a biophysicist who holds an M.D. and a Ph.D. Dkt. 1(Complaint) ¶ 3; Dkt. 24-28 (Certified Administrative Record ("CAR")) at CAR0254. He is the founder and Chief Executive Officer of Aerendir Mobile, Inc., a company he started in 2015 based on his patented biophysics technology. CAR0119. Plaintiff was previously employed by Scanadu Inc., where his patented inventions formed the basis of the company's FDA-approved medical device. CAR0193. Plaintiff has also engaged in research and other activities for the Belgian Ministry of Defense. CAR0202. In 2016, Plaintiff was granted an O-1 visa. See CAR0101. On December 3, 2018, Plaintiff filed a petition for an EB-1A visa. CAR0088. USCIS issued a Request for Evidence on April 8, 2019, and Plaintiff responded on July 15, 2019. CAR 0089; CAR0265. USCIS denied Plaintiff's petition on September 11, 2019. CAR0088. Plaintiff appealed the denial to the USCIS Administrative Appeals Office ("AAO") on October 11, 2019, and provided additional evidence of his qualifications. CAR0019-0057. The AAO dismissed the appeal on July 21, 2020. CAR0002. Following dismissal of his administrative appeal, Plaintiff filed this lawsuit. ... As discussed above, the Court concludes that Plaintiff satisfied step one of the Kazarian framework because he submitted sufficient evidence of at least three of the 10 criteria under 8 C.F.R. § 204.5(h). Specifically, Plaintiff provided sufficient evidence of the following criteria: (1) original scientific contributions of major significance; (2) authorship of scholarly articles; (3) published material about the alien; and (4) receipt of lesser awards in the field of endeavor. ... In this situation, the proper course is to remand to the agency for further proceedings consistent with the Court's decision. Rubin v. Miller, 478 F. Supp. 3d 499, 508 (S.D.N.Y. 2020). On remand, USCIS must proceed to step two of Kazarian and conduct a final merits determination."

[Hats off to Michelle Gee!]