EB-1A · Framework
The Final Merits Determination: Kazarian's Second Step, Explained
Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), is the case every EB-1A guide eventually cites, but it's worth understanding precisely what it actually changed and why. Before Kazarian, USCIS often collapsed the extraordinary-ability inquiry into a single step — evaluating the QUALITY of each piece of evidence while counting criteria, effectively pre-judging merit during the counting stage itself. Kazarian held this was legally wrong: counting criteria and judging merit are two separate steps, and the first step's counting must be a low-bar, evidence-exists inquiry, with the real qualitative judgment reserved for a second, distinct final merits determination. USCIS's own Policy Manual formally adopted this two-step structure, and it's now how every EB-1A petition is actually adjudicated. This guide focuses specifically on step two — the final merits determination — since it's both the least understood part of the framework and, in practice, the stage where a real, technically-qualifying petition most often still falls short.
Step one, briefly: what the 3-of-10 count actually establishes
Step one asks whether the petitioner has submitted evidence meeting at least 3 of the 10 regulatory criteria (or, rarely, a single major one-time achievement). Per Kazarian, this step is a low-bar, evidence-EXISTS inquiry — does the petitioner have SOME qualifying evidence for at least 3 criteria — not yet a judgment about how impressive or convincing that evidence is. A petitioner can clear step one with evidence that, examined closely, turns out to be fairly thin, because step one isn't supposed to weigh thinness yet.
This is precisely why step one alone was never meant to be sufficient — and why a petition that treats meeting 3 criteria as the finish line, rather than the entry point to a genuinely separate second review, is misunderstanding the framework at a structural level.
Step two: what the final merits determination actually asks
The final merits determination asks a different, harder question: considering the evidence in its totality, has the petitioner established SUSTAINED national or international acclaim, and that they are among the small percentage who have risen to the very top of their field? This is a holistic, narrative-level judgment about the whole record read together — not a second pass through the same 3-of-10 checklist, and not a mechanical function of how many criteria were met (meeting 4, 5, or 6 criteria doesn't automatically pass final merits any more reliably than meeting exactly 3 does, if the underlying evidence is thin).
The word "sustained" matters specifically — USCIS is looking for acclaim that has persisted over a meaningful period, not a single high point followed by a long gap, and "among the small percentage" is a comparative, field-relative standard (addressed in depth below), not a literal statistical cutoff applied mechanically.
Why meeting 3 criteria doesn't guarantee passing final merits
This is the single most common misunderstanding this guide addresses. A petitioner can genuinely meet 3 (or more) criteria on paper — real awards exist, real published material about them exists, real judging experience exists — while the underlying evidence, examined together, still doesn't add up to a convincing story of sustained, top-of-field acclaim. A regional award that technically qualifies as "nationally or internationally recognized" under a generous reading, a single newspaper profile that technically qualifies as published material, and a one-time judging invitation that technically qualifies as participation as a judge can each individually clear step one's low bar while collectively painting a picture of solid, competent professional achievement rather than genuine top-of-field acclaim.
This is precisely the failure mode Kazarian's two-step structure is designed to catch at step two, and it's why RFEs and denials citing final merits specifically (rather than a failure to meet 3 criteria at all) are a real, common pattern in EB-1A adjudication — the petitioner cleared the checklist and still didn't clear the qualitative bar.
What "the small percentage who have risen to the very top" actually means
This phrase, drawn from the regulation itself (8 CFR 204.5(h)(2)), is often misread as demanding literal statistical rarity — as if a petitioner needs to prove they're mathematically in some top percentile. In practice, it's a COMPARATIVE, field-relative standard: does the totality of the evidence show this petitioner has achieved a level of recognition that genuinely distinguishes them from the broader population of even accomplished professionals in their field, not just from an average practitioner. It's a qualitative judgment about relative standing, evidenced through the same objective criteria (awards, publications, judging, etc.) rather than a separate numeric test.
This has a practical consequence for how a petition should read: it should make clear, through the evidence itself and the narrative connecting it, WHY this petitioner's specific level of recognition is genuinely exceptional relative to their field's own norms — not simply list achievements and assume the reader will independently reach that comparative conclusion.
How adjudicators actually approach the final merits step
Unlike step one's item-by-item checklist logic, final merits is read holistically — an officer considers the whole record together, including evidence beyond the specific pieces that satisfied step one's 3-criteria count (step one doesn't require ignoring everything else; final merits can and does draw on the complete record). This means a petition's overall narrative coherence matters at this stage in a way it doesn't for the checklist step: does the evidence tell one clear, consistent, well-supported story of genuine acclaim, or does it read as several disconnected achievements loosely gathered under 10 regulatory headings without a unifying thread.
The petition letter's real job: bridging checklist evidence into a final-merits narrative
A common structural mistake is writing a petition letter organized purely as "Criterion 1: here's our evidence, Criterion 2: here's our evidence..." with no synthesis connecting them. This format helps step one (an officer can quickly verify each criterion has supporting evidence) but does little for step two, which needs an explicit, affirmative argument for why the TOTALITY shows sustained top-of-field acclaim specifically. The strongest petition letters do both: organize evidence clearly by criterion for step one's verification, AND include a genuine synthesizing narrative — often a dedicated final-merits section — that explicitly draws the connections between criteria, explains the comparative significance of the achievements relative to the field, and makes the affirmative case final merits actually requires.
Common final-merits failure patterns
- • Thin evidence technically satisfying a criterion's literal wording without genuinely reflecting field-wide recognition (a single, narrowly-distributed award; one passing media mention; a one-time, non-recurring judging role).
- • No comparative context — a list of achievements with no explanation of why they represent top-of-field standing relative to how the field's own recognition norms actually work.
- • A petition letter that reads as 10 separate mini-essays with no synthesizing narrative connecting them into one coherent acclaim story.
- • Relying on the petitioner's own self-characterization ("I am one of the leading experts in...") rather than independent, third-party evidence of that standing.
- • Meeting exactly 3 criteria with minimal, unelaborated evidence for each, rather than developing fewer criteria more deeply or genuinely meeting additional criteria with real depth.
What genuinely strengthens a final-merits case
- • Comparative evidence — data or expert commentary explicitly situating the petitioner's achievements relative to field norms (e.g., citation percentile data, an expert letter explicitly comparing the petitioner's record to recognized standards in the field).
- • Depth over breadth within each criterion — a small number of genuinely significant awards/publications/roles reads more persuasively than a long list of minor ones spread thin.
- • Independent, third-party recognition that itself implies comparative standing (being specifically sought out for judging, invited talks, or leadership roles BECAUSE of recognized expertise, not just general participation).
- • A genuinely synthesizing narrative that explicitly makes the totality argument, not just a well-organized evidence list.
- • Expert letters that speak specifically and comparatively to the petitioner's standing relative to the field, not generic praise.
A worked example: same 3 criteria met, different final-merits outcomes
Petitioner A meets 3 criteria: one regional industry award, one newspaper profile, and one instance of reviewing a conference submission. Each technically satisfies its criterion's literal requirements. The petition letter presents each separately with no further context. This petition is genuinely exposed at final merits — the totality reads as solid professional achievement, not sustained top-of-field acclaim, even though step one is technically satisfied.
Petitioner B, in a comparable field, meets the SAME three criteria types but with materially deeper evidence: a national-level award widely recognized as prestigious in the field (with expert-letter context on its selectivity), a substantial feature (not a passing mention) in a major, independent, field-relevant publication, and a standing, recurring role reviewing submissions for a top-tier conference in the field (not a one-time invitation). The petition letter also includes a synthesizing section explicitly connecting these three achievements into one coherent narrative of sustained, recognized standing. Petitioner B is materially better positioned at final merits despite meeting the identical three criteria TYPES as Petitioner A, because the depth of evidence and the narrative connecting it are genuinely different.
A practical drafting sequence for a final-merits-ready petition
- • Step 1 — draft the step-one evidence organization first (criterion by criterion), confirming at least 3 are genuinely, not just technically, satisfied.
- • Step 2 — separately, honestly assess: does the TOTALITY of this evidence, read together, actually support a comparative claim of sustained top-of-field acclaim? If the honest answer is uncertain, identify what's missing (depth, comparative context, additional independent recognition) before filing.
- • Step 3 — gather or request specifically comparative evidence where it's currently missing (an expert letter that explicitly situates the petitioner's standing relative to field norms, rather than another general praise letter).
- • Step 4 — draft a genuine synthesizing narrative section, not just a criterion-by-criterion evidence list, that makes the final-merits argument explicitly and affirmatively.
- • Step 5 — have a knowledgeable but not personally invested reader (an attorney, or a colleague unfamiliar with the specific case) read the final draft and assess honestly whether it reads as a convincing top-of-field acclaim story, not just a technically-complete checklist.
Frequently asked questions
Does USCIS ever explicitly separate step one and step two in an actual RFE or decision?
Often yes — RFEs and decisions frequently distinguish between criteria not met at all (step one) versus criteria technically met but insufficient in the final merits totality (step two), and reading which type of language a specific RFE uses helps clarify whether the gap is about missing evidence or about the evidence's overall persuasiveness.
Can a petitioner meet more than 3 criteria to strengthen their final-merits case?
Yes, and this can help, but quantity of criteria met isn't itself the determining factor at final merits — 5 shallowly-documented criteria don't necessarily outperform 3 deeply-documented ones; what matters most is the depth and coherence of the totality, not just the count.
Is final merits evaluated using a different, higher standard of proof than step one?
Both steps use the same overall "preponderance of the evidence" standard of proof required throughout immigration adjudication — what differs isn't the legal proof standard, but the SUBSTANTIVE question being asked (does evidence exist, versus does the totality show sustained top-of-field acclaim).
Can evidence that didn't satisfy any of the 10 specific criteria still help at final merits?
Yes — final merits is a totality-of-the-record review, and it can draw on relevant evidence in the file beyond just what satisfied the specific 3+ criteria at step one, provided it's genuinely relevant to the sustained-acclaim, top-of-field question.
Does 'sustained' acclaim mean the petitioner must currently be actively achieving new recognition?
Not necessarily ongoing new achievements specifically, but the evidence should show recognition that has persisted over a meaningful period rather than one isolated high point followed by a long gap with nothing since — a single major achievement years in the past, with no subsequent evidence of continued standing, can be a real final-merits vulnerability.
How does an adjudicator's own field expertise (or lack of it) affect a final-merits review?
USCIS adjudicators are generalists, not field experts, which is exactly why the petition needs to make the comparative significance argument explicitly and accessibly rather than assuming a reader will independently recognize why a given award or publication is significant within a specialized field.
Can a strong final-merits narrative compensate for barely meeting 3 criteria?
A strong synthesizing narrative helps, but it can't substitute for underlying evidentiary substance — final merits is about what the TOTALITY of the evidence actually shows, and narrative alone, without genuine evidentiary depth behind it, is unlikely to persuasively establish sustained top-of-field acclaim.
Does an RFE citing final merits mean the petition failed step one too?
No — an RFE that specifically addresses final merits (rather than disputing whether a criterion is met at all) typically indicates step one was satisfied and the concern is specifically about the totality's persuasiveness, which is a different and often more targeted kind of response to prepare than reopening the criteria count.
Is there a specific number of criteria that reliably passes final merits?
No fixed number — this is precisely the point of the two-step structure; final merits is a qualitative, totality-based judgment, not a higher numeric threshold layered on top of the 3-of-10 count.
Can comparable evidence (per 8 CFR 204.5(h)(4)) help at the final merits stage specifically?
Yes — comparable evidence used to satisfy a criterion at step one can still contribute to the overall totality picture at step two, provided it genuinely reflects the kind of recognition the criterion (and ultimately the sustained-acclaim standard) is meant to capture, not just technical compliance with the criterion's letter.
Does the final merits determination ever get discussed separately in the same decision that grants the petition?
Approval decisions are typically brief and don't always walk through the two-step reasoning explicitly, but the underlying adjudication still applies both steps regardless of how much the final written decision elaborates on the reasoning behind an approval specifically.
How does final merits interact with the alternative one-time-achievement path (e.g., a major internationally recognized award)?
A qualifying one-time major achievement is generally understood to itself demonstrate the sustained-acclaim standard given the achievement's own exceptional stature, functioning as an alternative route to establishing eligibility rather than requiring a separate 3-of-10 criteria count first — though this path is rare in practice and applies to only the most exceptional, internationally recognized honors.
Should a petition explicitly use the phrase 'final merits determination' in its own narrative?
It's not required, but explicitly organizing a section of the petition letter around making the totality/sustained-acclaim argument (whether or not it uses that exact regulatory phrase) helps ensure the argument final merits actually requires doesn't get left implicit or assumed.
Can a petitioner's field being very small or niche make final merits easier or harder to satisfy?
It cuts both ways and depends on the specific facts — a small field can make genuine top-of-field standing easier to document concretely (fewer peers to be compared against, clearer relative standing), but it can also mean less independent, large-scale recognition infrastructure (fewer major awards, less press coverage) exists to draw on, requiring more creative use of comparable evidence.
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