Burden of Proof
The burden of proof in an EB-1 case means that it's your responsibility to prove that you qualify for the visa. Here's what that means in practice:
You have to provide the evidence: It's up to you to gather and submit all the necessary documents and information to show that you meet the EB-1 criteria. USCIS won't do this research for you.
Quality of evidence matters: You need to provide strong, convincing evidence. It's not just about meeting the minimum requirements, but about demonstrating that you truly are at the top of your field.
Clarity is key: You need to clearly explain how your evidence proves your eligibility. Don't assume the USCIS officer will connect the dots - make your case as clear and straightforward as possible.
Final Merits Determination
USCIS follows a two-part review process in EB1. First, they assess if an EB1 applicant has satisfied at least 3 of the 10 criteria. Second, they evaluate the totality of the evidence to determine if the applicant has achieved sustained national or international acclaim and is among the top in their field.
This second step is called “Final Merits Determination”
USCIS can still deny an EB-1A petition on the grounds of final merits determination even if the applicant meets three or more of the regulatory criteria.
This is because meeting the criteria is only the first step in the two-part evaluation process. The final merits determination looks at the totality of the evidence to assess if the applicant truly has sustained national or international acclaim and is among the small percentage at the very top of their field.
Example:
Dr. Janhvi Shinde, a researcher in biochemistry, applies for an EB-1A visa. She meets three of the regulatory criteria:
She has published articles in scholarly journals.
She has judged the work of others in her field.
She has received a prestigious grant for her research.
While these achievements satisfy the initial criteria, USCIS may still deny her petition during the final merits determination if they find that:
Her published articles, while in scholarly journals, have low citation counts and minimal impact in the field.
Her judging experience is limited to reviewing a few papers for a local conference, not demonstrating sustained acclaim.
The grant she received, while prestigious, is common among early-career researchers and doesn't set her apart as one of the top in her field.
In the final merits determination, USCIS might conclude:"While Dr. Shinde has met three of the regulatory criteria, the totality of the evidence does not demonstrate that she has achieved sustained national or international acclaim and is among the small percentage at the very top of her field. Her publications have limited impact, her judging experience is not extensive, and her grant, while commendable, does not distinguish her as one of the leading experts in biochemistry. Therefore, the petition is denied."
Preponderance of Evidence
To assess if you’re a person of extraordinary ability, USCIS uses "preponderance of evidence" standard, meaning the claim must be more likely true than not (>50% likelihood).
Here's a simple explanation:
Imagine a balance scale:
On one side, you have evidence supporting your case.
On the other side, you have evidence against your case (or lack of evidence).
"Preponderance of evidence" means your side of the scale needs to be just a bit heavier.
In percentage terms, it's often described as being more than 50% likely.
You don't need to prove your case 100% or beyond all doubt. You just need to show it's more likely true than not.
This standard doesn't require absolute certainty but rather a convincing and well-supported case.
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Dr. Aditi Paul
PS: Not legal advice. This is for informational purposes.