The Kazarian Two-Step Test: Why 3 of 10 EB-1A Criteria Isn't Enough

Meeting 3 of the 10 EB-1A criteria only clears step one. USCIS still weighs everything together to decide if your record shows sustained acclaim.

Part of our guide to EB-1A and EB-2 NIW.

You've pulled together documentation for three of the ten EB-1A criteria — maybe judging duties, a handful of citations, and media coverage of your work. On paper, you clear the regulatory bar. But "3 of 10" is not the finish line USCIS uses to decide your case, and treating it as one is the single most common reason technically-qualifying EB-1A petitions still get denied.

Since 2010, USCIS has adjudicated every EB-1A extraordinary ability petition under a two-step framework established by the Ninth Circuit in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), and adopted into the USCIS Policy Manual, Volume 6, Part F, Chapter 5. Step one is a checklist. Step two is judgment. This post walks through both, why the gap between them trips up otherwise strong candidates, and what changed on August 5, 2026 that makes getting step one right on the first try more important than ever. This is general information about how the process works, not legal advice about your specific case — talk to a licensed immigration attorney about your own evidence.

Step 1: the ten regulatory criteria under 8 C.F.R. 204.5(h)(3)

The regulation at 8 C.F.R. 204.5(h)(3) lists ten types of evidence. A petitioner must document at least three of them, or alternatively show receipt of one major, internationally recognized award (comparable to a Nobel Prize) that on its own satisfies step one.

Step one is essentially a gatekeeping function. USCIS confirms the evidence you submitted actually fits the plain requirements of at least three categories (or the major-award alternative). It is a lower bar than most petitioners expect, and it is also where a surprising number of petitions fail outright — evidence submitted under the wrong criterion, or evidence that meets the letter of a criterion but not its substance, gets rejected here before the analysis even reaches step two.

Step 2: the final merits determination

Clearing step one only means USCIS proceeds to weigh everything together. This "final merits determination" is where the officer asks a fundamentally different question than in step one: not "did the petitioner check enough boxes," but "does this record, as a whole, establish that this person is one of the small percentage who has risen to the very top of the field and has sustained national or international acclaim."

This is the part Kazarian was actually about. Before the Ninth Circuit's decision, some USCIS adjudicators were importing the final merits analysis into step one — effectively demanding that each individual piece of evidence independently prove extraordinary ability, rather than counting evidence toward the threshold and reserving the qualitative judgment for later. Kazarian separated the two steps cleanly, and the USCIS Policy Manual has followed that structure since.

In practice, the final merits determination looks at things like:

1. Depth and recency of the evidence. Three criteria met with old, thin documentation reads very differently than three criteria backed by a sustained, recent track record.
2. Consistency across the record. Does the citation count support the "original contributions" narrative? Does the media coverage actually corroborate the claimed leading role?
3. Field-specific context. What counts as impressive in a narrow academic subfield may look unremarkable without comparative context — and vice versa.
4. Independent corroboration. Letters from people with a personal or financial stake in your success carry less weight than independent, verifiable evidence.
5. The gap between "qualified" and "extraordinary." Meeting minimum criteria is evidence of a strong professional. The final merits stage is testing for something narrower — sustained acclaim at the top of the field.

A petition can satisfy step one on a technicality and still fail step two because, taken together, the story it tells is "solid mid-career professional" rather than "extraordinary." That gap is exactly why EB-1A denial rates remain meaningful even among petitions that facially meet three criteria — and it is why USCIS explicitly instructs officers not to stop analyzing once the threshold is met.

What USCIS Policy Alert PA-2026-05 changed — and what it didn't

Effective August 5, 2026, USCIS Policy Alert PA-2026-05 lets officers deny an EB-1A (or EB-2 NIW) petition that is missing required initial evidence without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). Before this alert, a petitioner who filed with a gap in their evidence could generally count on an RFE giving them a second chance to fill it.

According to Mondaq's August 2026 analysis, USCIS has confirmed that PA-2026-05 did not change the underlying Kazarian standard, and it has not eliminated RFEs outright — officers retain discretion to issue one. What changed is the safety net: a petition that would previously have drawn an RFE for a missing exhibit can now be denied on the initial filing instead. That makes the difference between a well-documented step-one showing and a borderline one much more consequential than it used to be.

If you're weighing EB-1A against the related EB-2 National Interest Waiver route, see is EB-1A/NIW still realistic for students after PA-2026-05 for how the same policy shift affects that category.

Common mistakes

• Treating "3 of 10" as the goal instead of the floor. Petitioners who stop building their record once they technically satisfy three criteria are optimizing for the wrong step.
• Spreading thin evidence across many criteria instead of building depth in a few. Six weakly-documented criteria rarely beat three criteria with strong, well-corroborated evidence, because the final merits stage weighs quality over count.
• Relying on interested-party letters. Recommendation letters from advisors, collaborators, or employers matter less than independent, verifiable evidence (citation counts, media coverage from outlets with no relationship to you, objective award criteria).
• Ignoring the "why does this matter" narrative. A well-organized petition connects the dots for the officer — explaining why the judging role, the publication, or the award is significant in your specific field — rather than leaving that inference to the adjudicator.
• Filing before the record is complete, assuming an RFE will fix gaps. Under PA-2026-05 (effective 2026-08-05), that assumption is now riskier than before.
• Confusing EB-1A with EB-1B or EB-1C. EB-1A is the self-petition, no-job-offer category; EB-1B (outstanding researcher/professor) and EB-1C (multinational manager) have different requirements and generally require an employer petitioner.
• Underestimating comparable evidence. If your field doesn't generate evidence that maps cleanly onto the ten criteria (common in some tech and non-academic fields), USCIS allows comparable evidence — but you have to make that case explicitly, not just submit a thin record and hope.

How petitioners typically strengthen a Kazarian-ready record

1. Inventory your evidence against all ten criteria first, even if you only plan to rely on three or four — this reveals which categories have the deepest documentation available.
2. Build depth, not just count, in the strongest three or four criteria rather than stretching to hit five or six thinly.
3. Prioritize independent, verifiable sources — citation databases, unaffiliated media, objective membership or award criteria — over letters from people connected to you.
4. Write a cover narrative that explicitly walks the adjudicator through both the step-one checklist and the step-two "why this adds up to sustained acclaim" argument, rather than leaving USCIS to connect the dots.
5. Get the full record assembled before filing, given that PA-2026-05 makes an incomplete initial filing riskier to submit and hope to fix later.
6. Have an attorney stress-test the petition against the final merits standard specifically — not just against the ten-criteria checklist — before it goes out the door.

For a fuller walkthrough of the self-petition process itself, see the EB-1A extraordinary ability self-petition guide, and if your field doesn't map cleanly onto the ten enumerated categories, comparable evidence for EB-1A covers how USCIS handles that gap.

Frequently asked questions

What is the Kazarian two-step test for EB-1A?

It is the analytical framework from Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), that USCIS now applies to every EB-1A petition. Step one checks whether you meet at least 3 of the 10 regulatory criteria in 8 C.F.R. 204.5(h)(3), or hold one major internationally recognized award. Step two, the final merits determination, looks at all of your evidence together to decide whether it actually shows sustained national or international acclaim at the top of your field.

Does meeting 3 of the 10 EB-1A criteria guarantee approval?

No. Meeting the 3-criteria threshold only means your petition advances to the second stage of review. USCIS still has to find, in the final merits determination, that your combined evidence places you among the small percentage at the very top of your field. Many petitions that technically satisfy 3 criteria are still denied at this second stage because the underlying evidence is thin.

What is a final merits determination in an EB-1A case?

It is the second step of the Kazarian analysis, where a USCIS officer steps back from the checklist and evaluates the totality of the record. The officer asks whether the evidence, considered together, is consistent with sustained acclaim and a level of expertise indicating you are one of the small percentage who has risen to the very top of the field. This is a qualitative judgment, not a second count of criteria.

How did USCIS Policy Alert PA-2026-05 change EB-1A adjudication?

Effective August 5, 2026, PA-2026-05 lets USCIS officers deny an EB-1A or NIW petition that lacks required initial evidence without first issuing a Request for Evidence or a Notice of Intent to Deny. USCIS has confirmed the alert did not change the Kazarian standard itself and has not eliminated RFEs outright, so the two-step analysis still applies, but a weak initial filing now has less room to be fixed after the fact.

Can I self-petition for EB-1A without a job offer or employer sponsor?

Yes, EB-1A extraordinary ability is one of the few employment-based green card categories that allows self-petitioning, since no job offer or PERM labor certification is required. You still have to independently satisfy both steps of the Kazarian analysis on your own record, which is why the evidence-gathering and documentation work generally falls entirely on the petitioner and their attorney rather than an employer's HR team.

Sources

• USCIS Policy Manual, Volume 6, Part F, Chapter 5 — Extraordinary Ability
• USCIS — Employment-Based Immigration: First Preference EB-1

Building an EB-1A record that survives both steps of the Kazarian analysis takes time, independent evidence, and an honest read of where your documentation is thin. If you're weighing whether EB-1A, EB-2 NIW, or another path fits your situation, talk to F1Jobs about how your background lines up with the evidence USCIS actually looks for.