USCIS Policy
How USCIS Applies the Totality of Evidence Standard After Matter of Kazarian in 2026
Matter of Kazarian established the two-step framework that governs every O-1A petition filed in 2026. Understanding where petitions fail at the final merits step — and how to build a petition that survives it — requires a clear picture of how adjudicators apply the totality standard in practice.
What Kazarian established and why it governs O-1 petitions
Matter of Kazarian, a 2010 decision of the Administrative Appeals Office that was subsequently affirmed in relevant part by the Ninth Circuit, established the two-step analytical framework that now governs USCIS adjudication of O-1A and O-1B petitions, as well as EB-1A immigrant petitions for aliens of extraordinary ability. The decision arose from a petition that USCIS denied on the basis that the petitioner had not submitted sufficient evidence under each of the asserted regulatory criteria, and the AAO used the case to articulate a distinction that had previously been applied inconsistently: the difference between the criterion-counting step and the final merits evaluation of whether the petitioner has demonstrated sustained national or international acclaim.
Before Kazarian, some USCIS adjudicators conflated the two analytical steps, treating the criterion-by-criterion evidence review as the end of the analysis rather than as a threshold inquiry. This produced a pattern in which adjudicators would find that each individual piece of evidence was insufficient to demonstrate extraordinary ability — rather than simply asking whether each criterion was satisfied — and would deny petitions by collapsing the final merits inquiry into the criterion-counting step. Kazarian separated these two questions cleanly: first, has the petitioner submitted qualifying evidence under at least three criteria? Second, considered together, does that evidence demonstrate sustained national or international acclaim? Only if the first question is answered affirmatively does the second question need to be addressed.
The practical significance of Kazarian for petitioners in 2026 is that it creates two distinct failure modes for O-1A petitions. A petition can fail at step one by not producing qualifying evidence under three criteria. A petition can also fail at step two by producing qualifying evidence under three or more criteria but failing to convince the adjudicator that the totality of that evidence demonstrates the high level of achievement that the O-1A standard requires. Understanding which failure mode a petitioner is at risk of — and structuring the petition to address the right vulnerability — is one of the core strategic decisions in O-1A petition preparation.
The first step: counting satisfied criteria
The step-one inquiry under Kazarian asks only whether the petitioner has produced qualifying evidence under at least three of the eight regulatory criteria. Qualifying evidence means evidence that, if credited as accurate, would be probative of the criterion — not evidence that definitively proves extraordinary ability. An adjudicator conducting step one correctly does not ask at this stage whether the evidence is sufficient to establish extraordinary ability; the adjudicator asks only whether the evidence falls within the evidentiary category specified for that criterion and whether it relates to the petitioner. If the answer is yes under three or more criteria, the petition advances to step two.
The most common step-one failure involves submitting evidence that is categorically outside the criterion it is offered under. A letter from a colleague praising the petitioner's research productivity offered under the awards criterion fails step one for that criterion because the letter is not an award — it is an opinion. A salary documentation package offered under the original contributions criterion fails step one for that criterion because salary evidence speaks to compensation, not contribution. These categorical mismatches between evidence and criterion are avoidable with careful petition preparation and consume adjudicator attention without advancing the petition.
USCIS's 2019 Policy Manual update formalized the Kazarian framework and added guidance on what constitutes qualifying evidence under each criterion. The Policy Manual's chapter on extraordinary ability petitions specifies the types of evidence that are probative of each criterion, including examples of evidence that satisfies each criterion and notes on evidence types that do not. Petitioners should read the USCIS Policy Manual's O-1A criteria guidance — which is publicly available at uscis.gov — before finalizing their evidence selection, because the Policy Manual reflects the agency's current interpretive positions and identifies specific documentation types that have been found satisfactory at step one in prior adjudications.
The second step: final merits determination
The step-two inquiry asks whether the evidence, considered in totality, establishes that the petitioner has achieved sustained national or international acclaim and is among the small percentage of people who have risen to the very top of their field of endeavor. This is the O-1A statutory standard, and it is substantially higher than the threshold of satisfying three criteria at step one. A petitioner who satisfies three criteria at step one with minimally qualifying evidence has cleared the threshold; the step-two question is whether the totality of that evidence demonstrates the level of achievement that the extraordinary ability classification requires.
The totality evaluation at step two considers all the evidence under all the criteria together, not each criterion in isolation. Evidence that might be marginal under one criterion can be strengthened by corroborating evidence under another. A petitioner who received a modestly prominent award, published in reasonably well-known journals, and earns a salary at the 88th percentile for their field may not satisfy any single criterion at an unambiguous level of strength; but the combination of these three data points — all pointing in the same direction — can present a coherent picture of a petitioner who is operating at the higher levels of their field, even if no single piece of evidence is definitive.
The problem that many petitions encounter at step two is that the criteria were satisfied at step one, but the evidence under each criterion represents only minimal satisfaction — the petitioner served on a small grant review panel once, published in journals of modest standing, and earns at the 75th percentile for their field. Each criterion is technically satisfied, but the overall picture fails to convey high-level achievement. Kazarian did not change the fact that the extraordinary ability standard is demanding; it clarified where in the two-step process that demanding standard applies. The standard applies at step two, and petitions that focus only on clearing three criteria often fail there.
How adjudicators apply totality in practice
USCIS adjudicators conducting step-two evaluations consider the quality, volume, and consistency of the evidence presented across all criteria, as well as the expert declarations submitted in support of the petition. An adjudicator is not required to explain in the step-two reasoning why each individual piece of evidence is insufficient; the denial decision can simply state that, on consideration of all the evidence in the record, the petitioner has not demonstrated sustained national or international acclaim. This makes step-two denials harder to challenge on appeal than step-one denials, where an adjudicator who miscategorizes evidence can be shown to have applied the wrong legal standard.
Expert opinion letters become particularly important at step two because they give the adjudicator an independent evaluation of what the petitioner's career record means in the context of the field. A letter from a recognized figure in the petitioner's discipline who explains, with specific reference to the petitioner's documented achievements, why those achievements place the petitioner among the small percentage at the top of the field provides the adjudicator with a field-specific frame of reference that the evidentiary documents alone cannot supply. The most effective expert letters for step-two purposes are from experts who have both standing in the field and genuine knowledge of the petitioner's specific work.
The field context argument is a critical component of step-two preparation. Different fields have different concentrations of talent, different structures for recognizing achievement, and different rates at which individuals accumulate the signals that correlate with extraordinary ability. A researcher in an emerging subfield of computational biology may have an h-index of 15 at career levels where mainstream molecular biology researchers typically reach 30 — but the comparison group for step-two purposes is researchers in the same subfield, where an h-index of 15 may be genuinely elite. The petition must establish this context explicitly, because adjudicators cannot be assumed to know the calibration points for every subfield in every discipline.
What petitions fail at the final merits step
The most common pattern in step-two failures is a petition that has compiled a large volume of marginally qualifying evidence under multiple criteria, without any single criterion being particularly strong and without coherent expert framing of what the cumulative record demonstrates. More evidence is not always more persuasive at step two. A petition with compelling documentation under three criteria — strong enough that each criterion is satisfied at a high level rather than a minimal one — is typically more persuasive than a petition with thin evidence spread across six or seven criteria, because the strong three-criterion petition tells a coherent story while the six-criterion petition with weak evidence under each suggests the petitioner barely clears any of them.
Petitions that fail to contextualize the evidence within the field are the second major pattern of step-two failure. Evidence that is compelling when understood in field context can appear unimpressive when presented in isolation. A petitioner who received an invitation to give a keynote address at the leading conference in their specialty area has received a significant recognition — but the petition must explain that the conference is the leading one in the field, what the selection process for keynotes involves, and what proportion of conference attendees receive this invitation. Without that context, an adjudicator may see a conference speaking invitation and assess it as a modest credential rather than a significant honor.
Expert letters that are generic — letters that describe the petitioner as talented and hardworking without specifically addressing what their career record demonstrates in the context of the field — are the third major pattern. Generic expert praise fails the step-two analysis because it does not provide the field-specific evaluation that the inquiry requires. An expert letter stating that the petitioner is among the top researchers the writer knows tells the adjudicator nothing useful about whether the petitioner is among the small percentage of people who have risen to the very top of the field globally. The letter must make that comparison explicitly and support it with specific reference to the petitioner's documented achievements.
Building a petition strategy around the Kazarian framework
The strategic implication of Kazarian for petition preparation is that the criteria selection and evidence development decisions should be made with step two in mind from the outset. Selecting criteria where strong evidence is available — rather than criteria where minimal evidence can technically satisfy step one — produces a petition that is more likely to succeed at step two. The question to ask for each criterion is not whether the criterion can be satisfied at all but whether it can be satisfied at a level that contributes meaningfully to a step-two narrative of extraordinary achievement. Criteria where the answer to the second question is yes are the ones to assert.
The cover letter plays a different role in a Kazarian-aware petition than in a petition that simply walks through the criteria mechanically. A Kazarian-aware cover letter presents the evidence under each criterion, then ties it together in a step-two section that argues from the totality of the evidence why the petitioner has demonstrated sustained national or international acclaim. This step-two argument should cite the strongest evidence from each criterion and show how the evidence combines to paint a coherent picture of a petitioner at the top of their field. Expert letters can be cited in this section to show how independent observers from the field evaluate the significance of the petitioner's career record.
For petitions that face step-two risk — where the criteria-level evidence is adequate but the extraordinary ability case requires significant interpretation — investing more heavily in the expert letter program before filing is the most effective pre-filing investment available. Recruiting independent experts with verifiable standing in the field, briefing them carefully on what the step-two analysis requires, and reviewing draft letters for specificity and field-level framing takes time but produces significantly better step-two evidence than letters collected hastily from willing colleagues. Premium processing under 8 C.F.R. § 103.7 ensures that this carefully prepared petition receives adjudication within a defined window, giving the petitioner planning certainty on the filing timeline.
What we typically gather for this kind of case
| Document | Where to source | Why it matters |
|---|---|---|
| Expert letters | 5–8 independent recognized experts | Quality and independence beat volume |
| Certified translations | ATA-certified translator | Required for any non-English source document |
| Exhibit cover sheets | Drafted by counsel, one per exhibit | Tells the adjudicator what each piece shows |
| Bibliometric reports | Web of Science / Scopus | Quantifies impact for original-contributions criterion |
What we see go wrong, again and again
- 01Sending exhibits without a one-paragraph framing memo explaining what each shows and why it matters.
- 02Relying on volume over specificity — five well-targeted expert letters beat fifteen generic recommendations.
- 03Skipping certified translations or using AI translation for foreign-language source documents.