Explain why the AAO may remand even when petitioners satisfy three criteria, focusing on final merits review.

The case APR032024_01B2203 illustrates a common procedural dismissal pattern in EB‑1A appeals: the AAO can order remand even when petitioners satisfy multiple of the five statutory criteria. This decision was filed by an individual in film production whose evidence met at least three of the following requirements:

• Artistic display

• Awards (major internationally recognized award)

• Judging (peer review of others' work)

• Leading or critical role

• Published material

Per-Criterion Findings ≠ Final Merits Approval

When reviewing EB‑1A petitions, the Administrative Appeals Office (AAO) makes two distinct types of determinations:

Per-criterion findings: The AAO evaluates each criterion independently and states whether evidence meets that specific requirement. In this case, the AAO accepted artistic display (independent film projects exhibited at several festivals) and published material (interview in ICG Magazine deemed a major trade publication). These were clear per-criterion acceptances.

Final merits review: This is a holistic determination of whether all five criteria collectively satisfy the legal standard for extraordinary ability. The AAO explicitly states that it "did not make" this final determination in APR032024_01B2203, resulting in remand to the Service Center.

The distinction matters because:

• Meeting three or more of the five criteria is a necessary condition for approval

• It is not a sufficient condition

• The AAO retains discretion to order remand even when multiple criteria are met

Why Remand Can Occur Despite Meeting Criteria

In this case, several factors contributed to the procedural dismissal:

Factor Explanation -------- ------------- Missing awards evidence No major internationally recognized award was presented despite it being a required criterion Functional link uncertainty While published material was accepted, the AAO noted that functional links (connection between publication and petitioner's work) were missing in some aspects Judging criterion status The judging criterion was marked "falsified" with low confidence due to lack of evidence showing peer review of others' work

The AAO found these gaps significant enough to warrant remand, demonstrating that satisfying three criteria does not guarantee final merits approval.

The Falsification Flag and Judging Criterion

This case highlights a particularly nuanced situation regarding the judging criterion:

• Per-criterion finding: The AAO marked "judging" as falsified because no evidence of peer review was presented

• Low confidence flag: Despite this, the AAO did not definitively rule out that evidence could exist elsewhere in the petition

Petitioners should understand:

• A "falsification" marking means the specific criterion was not met for this filing

• It does not mean the petitioner cannot satisfy this criterion later with different evidence

• Even when one criterion is found lacking, remand may still be ordered if other procedural or evidentiary issues exist

Practical Implications for Petitioners

This pattern has concrete consequences:

1. Three out of five is not a safe threshold: Many petitioners assume that meeting three criteria means approval is guaranteed

2. Complete records matter more than minimum counts: The AAO evaluates all evidence holistically, even when some criteria appear satisfied

3. Remand decisions require immediate attention: Petitioners receiving such orders should expect to submit additional evidence addressing the identified gaps

Source Note

Non-precedent AAO decisions are used as evidence examples. They are not binding authority and do not predict any individual case.