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tory criteria is necessary when there The harder question is whether the utory meaning. An agency’s interpre- requirements—such as indefinite
is no qualifying one-time achieve- agency may use an administratively tation may persuade, but it does not preeminence, uninterrupted recogni-
ment, but it is not automatically created second step to discount ev- control merely because the statute is tion, or evidentiary expectations not
sufficient. The enumerated criteria idence that has already satisfied the ambiguous. found in the statute or regulation—it
identify types of evidence; they do regulation, particularly when that The post-Loper Bright inquiry remains vulnerable to challenge.
not displace the statute’s ultimate step has become the principal basis should therefore focus on whether This distinction is critical. Judi-
eligibility requirements. for denial. the INA and the regulation, proper- cial review cannot stop just because
According to Amin, which was WHY LOPER BRIGHT STILL ly interpreted, authorize the precise the USCIS has developed a “final
decided before Loper Bright, the MATTERS work that USCIS asks the final mer- merits determination” without no-
statute does not merely require a pe- its determination to perform. If the tice and comment. Courts must ex-
titioner to accumulate three catego- garwal should not be read as second step simply assesses whether amine how USCIS actually used the
ries of evidence. It requires extraor- restoring broad judicial defer- the evidence proves sustained ac- framework in the case before them.
dinary ability, sustained national or Aence to USCIS. Loper Bright claim and top-of-field status, it may An agency may not evade meaningful
international acclaim, recognition requires courts to exercise indepen- be characterized as application of review by describing an extra-textual
through extensive documentation, dent judgment on questions of stat- the statutory standard. If it adds new requirement as a holistic assessment.
an intention to continue working in ________________________________________________________________________________________________________________________________________________________________________________________________
the area of expertise, and prospec- Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
tive substantial benefit to the United
States. A court can therefore reason & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
that USCIS must evaluate whether mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
the evidence proves those ultimate Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
statutory elements. of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
But this does not fully answer
the objection to the agency’s final Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
merits framework. There is a mean- Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
ingful difference between applying on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
statutory elements and imposing a
separate, binding adjudicatory rule Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
with elastic standards untethered and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
to the regulatory text. The central immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
question is not whether USCIS may
consider the quality and probative the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
value of evidence. Of course it may. in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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