USCIS Policy
How USCIS Applies the Totality of Evidence Standard in O-1A Cases After the Kazarian Two-Step Framework
The Kazarian two-step framework changed how USCIS evaluates O-1A petitions — satisfying three criteria no longer guarantees approval. This guide explains how step-two totality analysis works in practice, what evidence supports and undermines it, and how to design a petition that holds up at both stages of review.
The Kazarian framework and its role in O-1A adjudications
The Ninth Circuit's decision in Kazarian v. USCIS established what practitioners now call the two-step analytical framework for extraordinary ability petitions. The first step requires the adjudicator to determine whether the submitted evidence objectively satisfies the enumerated regulatory criteria — in the O-1A context, whether the petition provides documentation meeting at least three of the eight criteria listed at 8 C.F.R. § 214.2(o)(3)(ii). The second step requires a final merits determination in which the adjudicator evaluates the totality of the evidence to determine whether the petitioner, taken as a whole, has demonstrated extraordinary ability — meaning they are among the small percentage at the very top of their field. This two-step structure fundamentally changed how USCIS evaluates O-1A petitions and how practitioners must design them.
Before Kazarian, some adjudicators treated satisfaction of three regulatory criteria as effectively determinative: a petitioner who provided acceptable evidence on three criteria was understood to have demonstrated extraordinary ability. The Kazarian framework introduced a second analytical layer that allows USCIS to deny a petition even when the petitioner satisfies the numerical criterion count, if the totality of the evidence does not demonstrate that the petitioner is truly at the top of the field. This shift created a two-front challenge for petitioners and their representatives: prevailing on the individual criterion counts is necessary but not sufficient, and the petition must also be designed to support a favorable totality determination.
The practical consequence of the two-step framework is that petitions should not be designed around achieving minimum criterion compliance. A petition that satisfies exactly three criteria with thin documentation on each may survive step one but fail step two because the totality of the evidence reflects ordinary professional achievement rather than extraordinary distinction. The petition's design objective should be to build a record that is genuinely persuasive at step two — one in which the accumulated weight of evidence leaves the adjudicator confident that the petitioner stands apart from peers in the field. That objective requires thinking about criteria not in isolation but as mutually reinforcing components of a unified evidentiary narrative.
The two-step analysis in practice
At step one, the adjudicator evaluates each submitted evidentiary category against the regulatory criteria text. For the awards criterion, the question is whether the evidence documents receipt of nationally or internationally recognized prizes or awards for excellence; for the press coverage criterion, whether the published material appeared in professional or major trade publications or other major media. These are objective assessments, and the adjudicator's role is to determine whether the evidence meets the regulatory description. If the petition satisfies three or more criteria at step one, USCIS proceeds to step two; if not, the petition is denied at step one without reaching the totality question.
At step two, the adjudicator evaluates the totality of the evidence to assess whether the petitioner has demonstrated extraordinary ability. The USCIS Policy Manual describes this as a final merits determination — a holistic assessment of whether all the evidence, considered together, establishes that the petitioner is among the small percentage at the top of their field. This standard is deliberately demanding: it is not satisfied by a strong professional record or by evidence that the petitioner is accomplished and respected. It requires evidence that the petitioner's accomplishments place them in the top tier relative to all similarly positioned practitioners. The totality standard does not specify a particular showing — it requires the adjudicator to exercise judgment, and different adjudicators can reach different conclusions on similar records.
The interaction between step one and step two is not always cleanly sequential in practice. USCIS sometimes folds step-two analysis into step-one assessments by discounting evidence as failing to establish the regulatory criterion on the grounds that it reflects only average achievement — an approach that conflates the objective criterion-counting function of step one with the qualitative extraordinary ability assessment of step two. The AAO has occasionally corrected this approach on appeal. Practitioners should be attentive to service center RFEs that appear to treat threshold criterion qualification as conditional on showing extraordinary distinction within the criterion, and should address both the criterion qualification argument and the step-two totality argument in RFE responses.
Evidence that supports a favorable totality determination
Petitions that perform well at step two typically share several characteristics. The evidence is not merely voluminous but qualitative: each piece of documentation is accompanied by context explaining what it demonstrates about the petitioner's standing relative to peers. A citation record is paired with expert declarations explaining which specific findings from the petitioner's publications have been adopted or engaged with by other researchers. A high salary exhibit includes BLS OEWS wage data for the correct occupational code showing that the petitioner's compensation exceeds the 90th percentile and a brief explanation of what that positioning reflects about how the market values the petitioner's expertise. The evidentiary architecture communicates field-level distinction, not merely individual professional accomplishment.
Independent recognition by credentialed practitioners with no organizational connection to the petitioner is particularly persuasive at step two. When multiple researchers at leading institutions, each with their own distinguished publication records, independently characterize the petitioner's work as significant and influential, the totality of that recognition is difficult to discount — it reflects a convergence of expert judgment that is corroborated by each declarant's standing. This is distinct from a stack of declarations that all say similar things in similar language, which can appear orchestrated. The most effective declarations at step two are specific, detailed, and authored from genuinely independent vantage points.
Consistency between criteria contributes to a favorable totality determination. When the same accomplishments surface across multiple evidentiary categories — the same research is cited in expert declarations, reflected in the petitioner's salary premium, referenced in press coverage, and tied to a critical role determination — the accumulated weight of consistent corroboration is more persuasive than five different criteria pointing to five different aspects of the petitioner's career. A totality review that reveals a coherent narrative of distinction is more persuasive than one that presents a series of disconnected achievements, each qualifying under a different criterion.
Evidence patterns that weaken step-two totality arguments
Several evidence patterns consistently weaken petitions at the totality review stage. Documentation of professional activities without contextual benchmarking — a list of publications without citation data, a salary figure without a comparison benchmark, a description of a role without documentation of the organization's standing — fails to establish the comparative dimension that the totality standard requires. USCIS adjudicators conducting a totality review need to assess how the petitioner compares to others in the field; evidence that describes what the petitioner did without establishing where that places them relative to peers does not support that comparative assessment.
Expert declarations that address competence rather than distinction are particularly problematic at step two. A declaration that attests to the petitioner's expertise, technical skills, and contributions to the declarant's own work does not establish extraordinary ability in the field unless it also explains what the petitioner's accomplishments mean for the field's practitioners generally. USCIS regularly discounts declarations that read as reference letters — positive assessments from people who know the petitioner's work — rather than as expert opinions about where the petitioner stands relative to the top tier of practitioners. The distinction matters because the totality standard is comparative: the petition must establish standing in the field, not just standing in the petitioner's immediate professional network.
Evidence that addresses ordinary professional development rather than extraordinary achievement — completion of a degree program, routine publication of research, promotion within a standard academic hierarchy, receipt of salary increases consistent with professional tenure — does not contribute meaningfully to a step-two totality argument regardless of how it is characterized. The totality standard explicitly requires that the evidence, taken together, demonstrates more than a strong professional record. Including routine professional milestones in the petition does not strengthen the totality argument and may dilute the impact of the genuinely distinctive evidence by surrounding it with unremarkable material.
Framing borderline evidence under the totality standard
Borderline evidence — evidence that partially satisfies a criterion or that falls short of clear exceptional achievement — can still contribute to a favorable totality determination when it is framed to establish what it does show rather than presented as definitively satisfying a criterion. A petitioner whose publications have moderate citation counts but who can demonstrate through expert declarations that those publications addressed important open questions in the field and influenced subsequent research directions has a plausible totality argument even if the citation count alone would not support extraordinary achievement. The framing requires honesty about what the evidence shows while maximizing what the evidence legitimately establishes.
For petitioners whose most significant evidence is in the original contributions and peer recognition categories — a common profile for early-career researchers or professionals in emerging sub-fields — the petition brief should explicitly address the totality standard and explain how the combination of criteria presented cumulatively establishes extraordinary ability. This is particularly important when the petition does not present a dominant single credential — like a major internationally recognized award — that might individually carry the totality argument. In the absence of a compelling standalone credential, the brief's role is to synthesize the multiple criteria into a coherent account of the petitioner's field-wide standing.
For professionals whose careers have included a significant transition — between research and industry, between fields, or between countries — the totality argument may require the petition to address the transition directly rather than presenting pre-transition and post-transition evidence as though they are parts of a uniform career record. The AAO has reviewed petitions where the petitioner's strongest evidence came from a field or career stage they were no longer actively pursuing, and has questioned whether that evidence demonstrates current extraordinary ability in the relevant field. Addressing the transition in the petition brief — explaining how prior accomplishments remain relevant to the petitioner's current field standing — is more effective than hoping the adjudicator draws the connection independently.
Auditing a petition for totality vulnerability before filing
A practical approach to step-two vulnerability is to read the compiled petition from the adjudicator's perspective before filing. The question to ask at each step is: does this evidence, in this form, establish that the petitioner stands among the top tier of practitioners in the field? If the honest answer is that the evidence could be read that way rather than clearly yes, the evidence needs supplementation or better contextual framing. The most common gap identified in this review is the absence of benchmarking: the petition presents strong absolute evidence — impressive publications, a prestigious grant, a critical role at a recognized institution — without establishing how that evidence compares to the field's population.
The petition brief is the primary vehicle for step-two analysis. A brief that addresses the totality determination explicitly — walking the adjudicator through the accumulated weight of evidence and explaining why that accumulation demonstrates extraordinary ability rather than simply professional accomplishment — is more likely to produce a favorable step-two outcome than a brief that summarizes the evidence by criterion without synthesizing the totality picture. Some practitioners structure the brief with a distinct totality section after the per-criterion analysis; others integrate the totality framing throughout. Either approach works as long as the totality argument is explicit rather than implicit.
One reliable audit technique is to identify the weakest criterion in the petition and ask whether the petition would survive step two if that criterion were discounted entirely. A petition with a genuinely strong record on four criteria and a borderline fifth has more totality resilience than one that barely satisfies three criteria without meaningful margin. Building more than the minimum required criteria into the initial petition — through thorough documentation that produces qualifying evidence on four, five, or six criteria — creates a buffer against step-one rejections and provides more material for the step-two totality argument. The additional investment in documenting a fourth or fifth criterion is almost always worthwhile.
What we typically gather for this kind of case
| Document | Where to source | Why it matters |
|---|---|---|
| Peer-reviewed publications | Web of Science / Scopus exports | Anchors original-contributions and authorship criteria |
| Citation analysis | Google Scholar profile + ESI top-1% data | Quantifies major significance in the field |
| Salary benchmark | BLS OEWS for SOC code + locality | Documents high-salary criterion at 90th-percentile or above |
| Critical-role letters | Direct supervisor + program director | Establishes role's importance, not just title |
What we see go wrong, again and again
- 01Treating extraordinary ability as a credentials checklist rather than a story of field-wide impact.
- 02Submitting bibliometric data (h-index, citation counts) without explaining what makes those numbers high relative to peers in the same sub-field.
- 03Relying on letters from collaborators or co-authors rather than independent experts who can speak to influence.