USCIS Policy
How Kazarian's Two-Step Framework Applies to O-1A vs. EB-1A
The Kazarian two-step analysis governs both O-1A and EB-1A petitions, but adjudicators apply the totality-of-evidence step with notably different rigor in each category. Understanding how the standards diverge helps petitioners calibrate evidence strategy for both filings.
The same framework, different applications
The Kazarian two-step framework, established by the Ninth Circuit in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) and subsequently adopted USCIS-wide through agency guidance, governs the extraordinary ability analysis in both O-1A and EB-1A petitions. Step one requires counting the evidence submitted against each regulatory criterion to determine whether the petitioner has met the threshold number of criteria — three of eight for O-1A, three of ten for EB-1A — without evaluating quality or significance at the threshold stage. Step two is the final merits determination: a holistic review of the full record to assess whether the evidence, considered in its totality, demonstrates that the petitioner has risen to the very top of their field with sustained national or international acclaim.
The Kazarian decision corrected USCIS practices of conflating the threshold inquiry with the final merits determination — specifically, improperly conducting a quality assessment during step one by declining to count evidence that was technically responsive to a criterion because it did not reach some undefined quality threshold. Under the two-step framework, step one is binary: either the evidence establishes that the criterion is met, in which case it counts toward the threshold, or it does not. Quality distinctions among evidence that meets the criterion threshold are reserved for step two. This structural separation matters practically because a petitioner who meets the three-criterion threshold but whose evidence is not distinguished enough to establish top-of-field status will be denied at step two, not at step one.
Despite applying the same formal framework, O-1A and EB-1A adjudicators apply the totality-of-evidence analysis at step two with meaningfully different rigor and different institutional cultures. O-1A petitions are nonimmigrant and are adjudicated at the USCIS service centers alongside high-volume nonimmigrant case work. EB-1A petitions are immigrant and are typically reviewed with greater scrutiny because approval confers permanent residence rather than temporary status. The AAO, which reviews EB-1A denials on appeal, has developed a more extensive body of interpretive decisions for EB-1A than for O-1A. Practitioners preparing petitions for applicants who qualify for both categories must understand how these institutional differences translate into different evidentiary expectations in practice.
How Kazarian applies in O-1A adjudications
In O-1A adjudications, step one of the Kazarian analysis is generally conducted at the criterion level with the plain-language standard: does the submitted evidence demonstrate that the petitioner meets this criterion? Adjudicators at the service centers evaluate whether the evidence submitted under each criterion — peer review confirmations for the judging criterion, employer letters for the critical role criterion, salary documentation for the high salary criterion — is responsive to the criterion as stated in the regulation. The threshold determination is whether the criterion is arguably satisfied, not whether the evidence is of the highest quality. A peer review confirmation from a modest-impact-factor journal counts toward the judging criterion threshold in the same way as one from a flagship journal, even though the quality difference is substantial.
At O-1A step two, the totality analysis evaluates whether the full evidence record demonstrates extraordinary ability — sustained national or international acclaim, recognition as one of the small percentage of individuals at the very top of the field. O-1A adjudicators apply this standard across all scientific, educational, business, and athletic fields with a high-volume caseload. In practice, O-1A step two analysis is often less granular than EB-1A step two analysis: a petition that clearly meets three criteria with strong evidence will typically pass step two without a detailed written analysis of each evidence item. Denials at step two in O-1A cases most commonly arise when the evidence record technically clears three criteria but the overall quality suggests professional competence rather than the extraordinary ability the standard requires.
Premium processing for O-1A petitions under Form I-907 requires USCIS to respond within fifteen business days, which creates a practical constraint on O-1A step two analysis. Adjudicators reviewing premium-processed petitions have limited time to conduct in-depth analysis that a genuinely complex step two determination might warrant. This pressure cuts both ways: straightforward step two analyses are completed efficiently, but nuanced cases where the step two determination is close may receive less deliberation than under regular processing. Petitions that present the step two argument clearly and preemptively — with a brief that explicitly addresses the totality-of-evidence standard and explains why the full record demonstrates top-of-field status — are at a meaningful advantage in the premium processing environment.
How Kazarian applies in EB-1A adjudications
EB-1A adjudications apply the same Kazarian two-step framework, but the step two totality analysis is typically more searching than in O-1A cases. The EB-1A standard requires the same ultimate finding — that the petitioner has risen to the very top of their field — but the immigrant context produces heightened scrutiny at USCIS service centers and at the AAO on appeal. AAO decisions interpreting EB-1A evidence standards are more detailed and consistent than service center O-1A adjudication patterns, and the EB-1A denial rate is generally higher than the O-1A approval rate for comparable evidence records. Practitioners who rely on O-1A approval as indicative of EB-1A approvability routinely discover that EB-1A adjudicators apply a more exacting analysis to the same evidence.
At EB-1A step two, the AAO has explicitly addressed situations where a petitioner met the three-criterion threshold but where the quality of the evidence did not, in the AAO's assessment, demonstrate the required level of sustained national or international acclaim. Non-precedent AAO decisions have found that evidence technically responsive to a criterion may collectively fall short of step two when none of the individual pieces reflects the highest level of recognition in the field. The AAO's step two analysis is comparative in a way that O-1A step two analysis often is not: the question is not merely whether the record is impressive in the abstract, but whether it places the petitioner in the same category as the world's leading researchers or practitioners.
The EB-1A step two standard is tested through the AAO's evaluation of whether each criterion's evidence is sufficiently distinguished to contribute meaningfully to a finding of sustained acclaim. An EB-1A petition that meets three criteria through relatively modest evidence — a regional award, modest citation counts across publications, one critical role at a mid-tier institution — will commonly receive a step two denial even though the threshold inquiry was satisfied. This is the defining practical difference from O-1A: the same evidence profile is more likely to receive O-1A approval, not because the formal standard differs, but because O-1A adjudicators apply the totality analysis with a somewhat more deferential posture toward petitioners who have cleared the threshold with responsive evidence.
When O-1A produces more favorable outcomes
O-1A produces more favorable outcomes than EB-1A for petitioners with evidence records that satisfy the threshold criteria but where individual evidence pieces are above average rather than exceptional. A researcher who has several hundred peer citations across multiple papers, has received one mid-career award from a major scientific society, and holds a senior research position at a well-regarded institution may receive an O-1A approval because the totality analysis at the service center level is reasonably satisfied by a solid but not extraordinary record. The same petition, filed as EB-1A, faces greater step two scrutiny and may receive a denial finding that the record does not demonstrate sustained acclaim at the level of the small percentage at the very top of the field.
O-1A is also procedurally favorable for petitioners who need an immediate determination and cannot tolerate the uncertainty of an EB-1A denial and AAO appeal timeline. O-1A premium processing provides a response within fifteen business days. An EB-1A denial from a service center can be appealed to the AAO, but the AAO's backlog means that the final determination on a complex appeal may take substantially longer than expected. For a researcher who needs to begin work within a defined window, the practical certainty of an O-1A approval on strong evidence is worth more than the theoretical possibility of an EB-1A approval that might arrive on an unpredictable timeline with additional stages of review.
The O-1A category also permits employer sponsorship with relatively low administrative overhead compared with employer-sponsored immigrant petitions that require PERM labor certification. For researchers whose U.S. employer is willing to sponsor an O-1A petition but does not want to undertake PERM, O-1A provides immediate work authorization while a concurrent NIW immigrant petition — which avoids PERM through the national interest waiver — proceeds separately. This parallel track means that choosing O-1A does not preclude concurrent pursuit of immigrant classification; it provides nonimmigrant work authorization while the immigrant petition queue resolves. Many researchers maintain O-1A status for years as the primary operational mechanism during a long priority date backlog.
When EB-1A produces more favorable outcomes
EB-1A produces clearly superior outcomes for petitioners with truly exceptional evidence records — researchers with citation records in the top percentile of their field, artists with sustained international careers at the highest level of their discipline, or professionals whose work has generated national recognition that is beyond question. For petitioners at this evidence level, the step two totality analysis in EB-1A cases is resolved without difficulty regardless of adjudicator rigor. These petitioners do not need the more deferential O-1A step two standard because their evidence satisfies the extraordinary ability standard under any reasonable interpretation. For them, EB-1A's advantage is not the approval probability but the legal effect: EB-1A approval establishes a priority date for permanent residence.
EB-1A is also the better pathway when the petitioner's country of birth places them in an employment-based preference category without a severe backlog. Petitioners from most countries outside India and China face current or near-current EB-1 priority dates, meaning an approved EB-1A I-140 can translate to an immigrant visa or adjustment of status filing within a year or two. For petitioners in this situation, pursuing EB-1A directly — rather than maintaining O-1A status for years while an NIW or employer-sponsored petition proceeds — provides the fastest path to permanent residence, which allows a researcher to change employers freely, pursue entrepreneurial projects, and plan a long-term U.S. career without periodic status maintenance concerns.
EB-1A also offers a structural advantage for self-petitioners — professionals without a U.S. employer who nonetheless have compelling extraordinary ability records. The EB-1A immigrant petition can be filed by the petitioner individually, without an employer sponsor, and the threshold and totality analysis are the same regardless of whether an employer is involved. A petitioner who cannot identify a qualifying U.S. employer or whose proposed U.S. activities will involve multiple short-term engagements can still file EB-1A without constructing the agent petition structure that O-1A requires in the absence of a direct employer. This self-petition option makes EB-1A structurally more accessible for certain profiles than O-1A, independent of the evidence standard differences.
Practical implications for dual filers
Petitioners who qualify for both O-1A and EB-1A should typically file both — the O-1A for immediate work authorization and the EB-1A to establish an immigration priority date. Filing both requires evidence assembly that is largely shared: the extraordinary ability exhibits, the expert letters, and the employer documentation overlap significantly, so the marginal cost of preparing two petitions from a shared evidence base is modest relative to the legal value of having both filings active. The petition preparer's role is to ensure that the O-1A and EB-1A supporting briefs frame the evidence appropriately for each standard — the comparative standing argument for O-1A, the more detailed step two totality analysis for EB-1A.
Petitioners should understand that an O-1A approval does not predict EB-1A approval, and petitions prepared identically for both categories often perform better in O-1A than EB-1A for the reasons described throughout this article. Practitioners who routinely file both petitions from the same evidence record report that EB-1A step two denials are not uncommon even when the O-1A was approved, particularly for researchers at mid-career stages where the evidence record is respectable but not clearly at the field's pinnacle. This means the EB-1A petition should be prepared with more explicitly detailed briefing on the totality argument than the O-1A, not simply filed as a copy of the O-1A with the category designation changed.
Petitioners who receive an EB-1A denial at the service center level and are considering an AAO appeal should assess whether the denial rested on a step one error — improperly declining to count evidence that satisfies a criterion — or a step two error — concluding that the totality of evidence does not demonstrate sustained acclaim. Step one errors are more clearly reversible on appeal and are more likely to result in AAO remand or reversal. Step two errors require arguing that the adjudicator's assessment of the evidence quality was arbitrary and capricious — a higher burden requiring careful analysis of the administrative record. Most practitioners filing AAO appeals on EB-1A denials focus on whether the framework was applied correctly at both steps, as procedural error in step one application is the most reliable basis for reversal.
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.
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