USCIS Policy
October 2025: Preponderance of Evidence in O-1
Real-world insights from recent cases. Learn what worked and how to apply these lessons.
The Preponderance Standard and O-1 Petitions
The preponderance of the evidence standard—that it is 'more likely than not' that the claim is true—is the applicable burden of proof for O-1 visa petitions. This standard was articulated clearly by the AAO in Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), which remains the foundational citation for understanding what O-1 petitioners must demonstrate. Under 8 CFR 214.2(o), the petitioner bears this burden, and meeting it requires submitting evidence that makes the beneficiary's extraordinary ability more probable than not.
Preponderance is a lower standard than 'clear and convincing evidence' or 'beyond a reasonable doubt,' but it is not trivially low. In practice, USCIS and AAO decisions reflect an understanding that 'more likely than not' requires more than a mere possibility. The evidence must affirmatively tip the scales—a collection of weak or ambiguous exhibits, even a large one, may fail to meet the standard if the adjudicator finds the overall record inconclusive. Matter of Chawathe emphasized that the quality and credibility of evidence matter as much as its volume.
For O-1A petitions in particular, the preponderance standard intersects with the extraordinary ability threshold in a nuanced way. The petitioner must show not merely that the beneficiary is accomplished—that would be true of many qualified professionals—but that it is more likely than not that the beneficiary is among the small percentage at the top of the field. Counsel must calibrate evidence to this dual requirement: meeting the regulatory criteria under 8 CFR 214.2(o)(3)(iv) and, simultaneously, making the extraordinary-ability finding more probable than not.
Kazarian's Two-Step Framework Explained
The Ninth Circuit's decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) established the two-step analytical framework that USCIS now applies nationwide to O-1 and EB-1A petitions. At step one, the adjudicator determines whether the evidence submitted satisfies the regulatory criteria—for O-1A, whether the beneficiary meets at least three of the eight evidentiary categories listed in 8 CFR 214.2(o)(3)(ii) or demonstrates a one-time achievement. At step two, the adjudicator performs a 'final merits determination'—a holistic assessment of whether the totality of the evidence establishes extraordinary ability.
Critically, Kazarian held that adjudicators may not incorporate a 'final merits determination' analysis into step one. At step one, the adjudicator must evaluate whether the plain regulatory requirements are met, without importing qualitative judgments about whether the showing is sufficiently impressive. For example, if a beneficiary has received awards, the step-one question is simply whether those awards qualify as 'prizes or awards for excellence' under 8 CFR 214.2(o)(3)(ii)(A)—not whether the awards are prestigious enough to establish extraordinary ability.
The practical implication is significant: a petition that satisfies multiple criteria at step one arrives at step two with presumptive credibility. The step-two merits determination is where the adjudicator weighs the overall record, and a petitioner who has satisfied four or five criteria with strong evidence is in a much better position at step two than one who has barely cleared the three-criteria threshold. Building a petition strategy that overwhelms step one is therefore a rational approach to ensuring a favorable step-two outcome.
Building a Petition That Overwhelms Step One
The eight evidentiary categories in 8 CFR 214.2(o)(3)(ii) for O-1A petitions cover: nationally or internationally recognized prizes or awards; membership in associations requiring outstanding achievement; published material about the beneficiary's work; participation as a judge of others' work; original scientific, scholarly, or business-related contributions of major significance; authorship of scholarly articles in professional publications; employment in a critical or essential capacity at distinguished organizations; and high salary or remuneration relative to others in the field. A petition that demonstrates clear, well-documented satisfaction of five or more of these categories places enormous pressure on the adjudicator at step two.
Building this kind of petition requires a systematic inventory of the beneficiary's career at the outset of the case. Counsel should work through each of the eight categories and ask: does the beneficiary have anything that fits this criterion, even if it might initially seem modest? Judging a regional competition, being listed as a reviewer for a journal, or receiving a departmental award can all form part of the evidence mosaic—particularly when paired with stronger items in other categories. The goal is not to inflate weak evidence but to ensure that every genuine qualification is captured and presented with the strongest possible framing.
Expert letters play a dual role in this step-one-heavy strategy. They serve as direct evidence of original contributions (criterion (iv)) and also provide context that helps the adjudicator understand why each other criterion is satisfied at the level required. A single well-crafted expert letter might address the significance of the beneficiary's awards, the prominence of the organizations in which they hold membership, the impact of their published work, and the nature of their critical-capacity employment—all in a coherent narrative that makes every individual data point more legible to a non-expert adjudicator.
Applying Matter of Chawathe to Credibility Issues
Matter of Chawathe's preponderance framework also governs how USCIS evaluates the credibility and authenticity of submitted evidence. Under Chawathe, USCIS adjudicators may not simply disregard submitted evidence—they must explain why evidence is found unpersuasive or insufficient if they decline to give it weight. This principle has been used in AAO appeals to challenge cursory RFE responses and denials that dismiss evidence without explanation.
Common credibility issues in O-1 petitions include: foreign-language documents without certified translations, media coverage from outlets whose prestige is not established for the adjudicator, expert letters from individuals whose credentials are not sufficiently documented, and award certificates that do not specify selection criteria or competition scope. Each of these issues can be addressed preemptively. Certified translations under 8 CFR 103.2(b)(3) are mandatory; media outlet prestige can be established through circulation figures and media guides; expert credentials should be documented with CVs; and award significance should be explained in accompanying declaration language.
The Chawathe standard also means that uncontested evidence must be given its full weight. If the petitioner submits a letter from a Nobel laureate attesting to the beneficiary's extraordinary ability, and USCIS finds that the beneficiary has not met the standard, the denial must grapple with that evidence. AAO decisions that do not adequately address high-quality evidence submitted by the petitioner are vulnerable to administrative appeal or federal court challenge, making the strength of individual evidentiary items strategically important even beyond their direct persuasive value.
2024–2025 AAO Decisions Interpreting O-1 Evidence
A review of non-precedent AAO decisions from 2024 and 2025 reveals several consistent themes relevant to O-1A petitions. First, the AAO has continued to apply Kazarian strictly, reversing service center denials where the adjudicator improperly applied a qualitative merits assessment at step one rather than deferring it to step two. This is an important avenue for appeal when a USCIS denial mischaracterizes the step-one inquiry.
Second, the AAO has emphasized that the beneficiary's contributions must be 'major' in significance under 8 CFR 214.2(o)(3)(iv)—not merely original or novel. In several 2024 decisions, the AAO found that petitioners who demonstrated innovation but could not show that the innovation had actually influenced the field (through citations, adoption by others, commercial impact, or similar evidence) failed to establish this criterion. This reinforces the importance of citation data, as discussed in the Google Scholar article, and of expert letters that trace the downstream impact of the beneficiary's work.
Third, the AAO in 2025 decisions has been more receptive to salary evidence as a proxy for recognition of extraordinary ability, particularly where the salary evidence is accompanied by expert analysis of field compensation norms. Salary data drawn from industry surveys (H-1B disclosure data, Bureau of Labor Statistics wage tables, or proprietary compensation surveys) presented alongside expert opinion letters that explain why the beneficiary's compensation level reflects recognition of their extraordinary contributions has fared well at step two under the preponderance framework.
The Final Merits Determination in Practice
Step two of the Kazarian framework—the final merits determination—requires the adjudicator to consider the totality of the evidence in light of the applicable standard of extraordinary ability. Under the preponderance standard from Matter of Chawathe, the question is whether the overall record makes it more likely than not that the beneficiary is among the small percentage at the top of the field. A petition that has built a strong step-one record should approach step two with a clear narrative: this is not a close case, and here is why.
The petition brief should devote a dedicated section to the final merits determination, explicitly acknowledging the two-step framework and summarizing why the evidence collectively establishes extraordinary ability. This section should connect the dots between individual criteria—showing, for example, that the beneficiary's high salary reflects the same peer recognition evidenced by their award history and citation count, and that the expert letters from multiple senior figures in the field confirm a consistent picture of extraordinary achievement. The goal is to make the step-two conclusion feel inevitable rather than contested.
Counsel should also prepare for the possibility of a Request for Evidence (RFE) at step two, even in strong cases. RFEs on step-two merits determinations frequently ask for more comparative evidence—specifically, comparisons between the beneficiary and their peers. Preparing this comparative evidence proactively, even if not initially submitted, allows for a rapid and comprehensive RFE response. Under 8 CFR 214.2(o), the petitioner controls the record, and a well-prepared RFE response can often convert a step-two skepticism into a favorable decision.
Strategic Implications for Petition Design
The intersection of the Chawathe preponderance standard and the Kazarian two-step framework has concrete implications for how O-1A petitions should be designed. The most effective petitions treat step one as an opportunity to create overwhelming momentum—filing with evidence that clearly satisfies five or more criteria, rather than barely threading the needle at three—and then leveraging that momentum at step two with a compelling narrative that synthesizes the evidence under the extraordinary ability standard.
Petition design should also account for the specific service center that will adjudicate the case. Different USCIS service centers have historically had different rates of O-1 approval and different patterns in the criteria they scrutinize most closely. While petitioners cannot always choose their service center, understanding adjudication patterns can inform which criteria to emphasize and which evidence requires the most detailed documentation.
Finally, counsel should view the preponderance standard not as a floor to clear but as a frame for the entire evidentiary strategy. Every document submitted should be evaluated against the question: does this make it more likely that the beneficiary is extraordinary? A clean, focused petition with twenty strong exhibits is often more effective than a bulky filing with fifty exhibits of varying quality. Under Matter of Chawathe, the adjudicator's task is to weigh the evidence, and a record weighted heavily toward high-quality, corroborated, expert-contextualized evidence is more likely to tip the scales in the beneficiary's favor than one padded with marginal supporting documents.