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The final merits determination, explained

This is the step most petitions underestimate. Counting criteria gets you past the first gate; it does not decide the case.

Not legal advice. Research Thread is an academic publication support service, not a law firm, and nothing here is immigration advice. We work on the research record — publications, citations, peer review and expert letters. Decisions about whether to file, which category to file under, and how a petition is argued belong with a qualified immigration attorney.

Where the two-step analysis comes from

In Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), the court set out a two-part approach that USCIS adopted for adjudicating extraordinary ability petitions. Step one asks whether the petitioner has submitted evidence meeting at least three of the ten regulatory criteria. Step two is a final merits determination.

At step two the officer weighs the record as a whole, asking whether it demonstrates sustained national or international acclaim and that the petitioner is among the small percentage who have risen to the very top of the field.

The two steps ask genuinely different questions. The first is largely mechanical — does this evidence fit this criterion. The second is evaluative, and evidence that technically satisfies a criterion can carry very little weight there.

Three criteria met is a threshold, not an approval. The final merits determination is where the case is actually decided.

Why petitions fail at step two

The most common pattern is a record assembled to tick boxes. Each criterion is satisfied by the thinnest evidence that arguably qualifies — a couple of reviews, a publication list, a membership — and nothing in the record speaks to standing in the field. Every box is ticked and the overall picture is of a competent researcher rather than an exceptional one.

The second pattern is evidence with no independent component. Letters from supervisors and collaborators, citations from the immediate circle, work published but not taken up. Sustained acclaim is a claim about how the field responded, and a record with no independent voices in it cannot evidence that.

The third is absence of context. Numbers presented without field baselines, journals named without evidence of their standing, awards listed without explaining what they are or who else receives them. An officer who cannot situate the evidence cannot weigh it favourably.

What a record that survives step two looks like

It has depth on at least some criteria rather than the minimum on all of them. A sustained reviewing record across recognised venues, a body of work with genuine independent uptake, letters from people with no stake in the outcome who can point to specific effects of specific work.

It supplies context throughout, so that every number and venue can be located against what is normal in the field. And it tells a coherent story — a line of work, a problem the field cared about, evidence that others followed.

That kind of record is built, not assembled. Which is the honest summary of this entire cluster: almost everything that makes a publication record persuasive at step two is a consequence of decisions taken years earlier about what to work on and where to publish it.

Frequently asked questions

The second stage of the Kazarian analysis. After confirming that at least three regulatory criteria are met, the officer weighs the record as a whole to decide whether it demonstrates sustained national or international acclaim and standing among the small percentage at the top of the field.

Yes. Meeting three criteria satisfies step one only. The final merits determination is a separate, evaluative assessment, and a record that technically qualifies on three counts may still not demonstrate the required standing.

Depth generally serves better than breadth. Strong, well-evidenced showings on three criteria tend to read better at step two than minimal showings across six, because the second stage is about the overall picture rather than the count.

Not against a formula. It is a holistic judgement on the whole record, which is why field context matters so much — it lets an officer see where the evidence sits relative to what is normal in your discipline rather than in the abstract.

See what a petition-ready record looks like in practice:Client case studies →Client reviews →

Not sure what your publication record actually evidences?

Book a free 30-minute consultation for an honest read on which criteria your record supports today — and what would realistically strengthen it. We work alongside your attorney, not instead of one.