May 2025: Preponderance of Evidence in O-1

The Preponderance Standard and Why It Matters in May 2025

Every O-1 petition is adjudicated under the preponderance-of-the-evidence standard, which means the petitioner must show that it is more likely than not that the beneficiary qualifies. This is a lower threshold than clear-and-convincing evidence and far lower than beyond-a-reasonable-doubt, but May 2025 RFE patterns suggest that some adjudicators are improperly applying a higher standard. Pushing back on that drift is one of the most important tasks in a modern O-1 response.

The preponderance standard is rooted in the Administrative Appeals Office decision Matter of Chawathe, 25 I and N Dec. 369 (AAO 2010), which held that an applicant satisfies the standard 'when it is more likely than not that the claim is true.' Chawathe also clarifies that even if a petitioner submits relevant, probative, and credible evidence, the agency may still deny if other evidence outweighs the petitioner's, but the agency cannot demand certainty. The decision has been cited approvingly in dozens of O-1 RFE responses through May 2025.

Why does this matter now? Because RFE language has been creeping toward 'demonstrate' and 'establish' phrasings that imply a higher standard, and because some officers are applying a de facto clear-and-convincing standard to specific criteria such as original contributions of major significance. A well-drafted response cites Chawathe in the opening paragraph and frames every subsequent argument through the preponderance lens.

Reading Matter of Chawathe Carefully

Chawathe is a citizenship case, not an O-1 case, but its preponderance holding is universally applicable to USCIS adjudications under the Immigration and Nationality Act. The decision identifies three components: relevance (the evidence bears on a material fact), probative value (the evidence tends to prove or disprove the fact), and credibility (the evidence is reliable). Each O-1 exhibit should be tagged against these three components in the cover memorandum.

The decision also addresses the scenario in which the agency has its own evidence cutting against the petitioner. The officer must weigh the totality of the record. If the petitioner submits a Chambers Global Band 1 ranking and the officer cites a single negative news article, the preponderance balance still favors the petitioner because one critical article does not outweigh consistent multi-year recognition by an industry peer body. Frame each potential weakness in the petition this way.

May 2025 AAO decisions continue to cite Chawathe approvingly. Two unpublished decisions issued in February and March 2025 reversed Service Center denials on the ground that the officer applied a higher standard than preponderance, particularly on the original-contributions criterion. Cite these decisions by date and outcome in the response if available through the AAO decisions database.

Applying Preponderance to the Eight O-1A Criteria

Under 8 CFR 214.2(o)(3)(iii)(B), the petitioner must satisfy at least three of eight criteria. Preponderance applies criterion by criterion. For each, the petitioner asks whether it is more likely than not that the evidence meets the regulatory text. For the awards criterion at subsection (B)(1), a Sloan Research Fellowship plus a Packard Fellowship plus a young investigator award from a sovereign-funded body easily satisfies preponderance because no reasonable observer would conclude the petitioner has not received nationally or internationally recognized prizes.

For the original-contributions criterion at subsection (B)(5), preponderance is satisfied by the combination of expert letters, citation counts, downstream adoption, and patent or product evidence. The officer cannot demand proof that every expert in the field agrees the contributions are of major significance; preponderance asks only whether more likely than not the contributions meet that bar. Cite Chawathe explicitly when responding to RFEs that ask for unanimous expert consensus.

Common mistake: drafting expert letters in absolute terms (the petitioner is the leading expert in the world). Such letters invite skepticism and can backfire. Prefer measured letters that describe specific contributions, place them in the field's literature, and conclude that the contributions are of major significance. Measured letters are more credible and easier to defend on a preponderance standard.

The Final Merits Determination After Kazarian

Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), established the two-step framework that USCIS now uses. Step one counts criteria; step two asks whether the totality of the evidence shows the petitioner sits at the top of the field. Preponderance applies at both steps. May 2025 RFEs increasingly focus on step two, with officers acknowledging that three criteria are met but questioning whether the totality establishes extraordinary ability.

Respond to step-two RFEs by reframing the entire record around the petitioner's career arc. Open with a one-page narrative that summarizes the trajectory, identifies the three to five most consequential accomplishments, and ties them together. Follow with a totality table that lists every exhibit with a one-line significance note. Close by citing Chawathe and arguing that the cumulative evidence makes it more likely than not that the petitioner is at the top of the field.

Common mistake: treating step two as a do-over of step one. The officer has already counted criteria; relitigating them at step two annoys the adjudicator. Step two requires a different kind of argument focused on totality, trajectory, and field placement.

Drafting RFE Responses That Win on Preponderance

Open every RFE response with a Chawathe paragraph: state the standard, cite the decision, and apply it to the specific issue raised. This signals to the officer that the response is grounded in controlling agency precedent and that any deviation from preponderance will be visible on appeal.

Use a structured response format: identify each RFE concern as a numbered question, restate the regulatory text, summarize the original evidence, and add supplemental evidence with explicit explanation of how the supplement addresses the concern. Avoid burying the new evidence in a flood of duplicative exhibits; the officer will not re-read the whole record.

Common mistake: responding emotionally or accusing the officer of error. Even if the RFE is wrong on the law, professional and measured language is far more effective. Save accusations of legal error for an appeal to the AAO, where they can be supported with citations and procedural posture.

Document the response timeline carefully. The standard response window for an O-1 RFE is eighty-seven days, and missing the deadline results in denial. Diary the deadline at filing, set internal milestones at thirty and sixty days, and aim to file the response with at least seven days to spare to absorb any last-minute issues.