The Step 2 Final Merits RFE: The One Most Petitioners Can't Answer

"But I Met Five Criteria"

The single most devastating RFE an EB-1A petitioner can receive is the one that says, in effect: "Yes, we agree you met five of the ten criteria. No, that does not mean you qualify."

First-time applicants find this response incomprehensible. The statute says three criteria. You met five. Case closed, right?

Wrong, and the reason is the Kazarian Two-Step framework. USCIS is required to run every EB-1A petition through two analyses: first, whether the evidence meets the individual regulatory criteria (Step 1), and second, whether the totality of that evidence demonstrates "sustained national or international acclaim" and establishes that the petitioner is "one of that small percentage who have risen to the very top of the field of endeavor" (Step 2).

A petition that passes Step 1 with five criteria can still fail Step 2 if the totality doesn't establish acclaim at the required level. That's the Step 2 RFE — and it's the one most petitioners can't answer, because it challenges something more abstract than per-criterion evidence.

This article is the complete playbook for identifying, understanding, and responding to a Step 2 final merits RFE.

The Kazarian Framework in One Paragraph

Before 2010, USCIS frequently counted criteria and approved petitions that met three of them, without a holistic evaluation. Then the Ninth Circuit Court of Appeals decided Kazarian v. USCIS, which held that USCIS must separately evaluate (1) whether each claimed criterion is met based on objective regulatory standards, and (2) whether the totality of the evidence — taken as a whole — demonstrates "sustained national or international acclaim." After Kazarian, USCIS issued policy guidance (the Kazarian memo) formalizing this two-step framework, and it has governed EB-1A adjudication ever since.

The practical upshot: meeting three criteria is a necessary condition, not a sufficient condition. You must pass both steps to be approved.

How to Identify a Step 2 RFE

Step 2 RFEs don't always announce themselves as such. Here are the language patterns that should immediately alert you that you're dealing with a Step 2 challenge rather than a per-criterion challenge.

Template 1: "Even assuming that the petitioner has established eligibility under the required number of criteria, the evidence does not demonstrate that the petitioner has sustained national or international acclaim in the field."

Template 2: "The record as a whole does not establish that the petitioner is one of the small percentage who have risen to the very top of the field of endeavor."

Template 3: "Upon consideration of the totality of the evidence, USCIS determines that the petitioner has not demonstrated the extraordinary ability required for classification as an alien of extraordinary ability."

Template 4: "While the evidence demonstrates that the petitioner has achieved notable accomplishments in the field, the record does not establish that those accomplishments place the petitioner at the very top of the field."

Notice what these have in common: each one concedes that you have some evidence or some qualifying criteria, then challenges the overall level of acclaim. This is the Step 2 signature.

Compare that to a per-criterion Step 1 RFE:

A Step 1 RFE challenges a specific criterion. A Step 2 RFE challenges the totality.

Why Step 2 RFEs Are So Hard to Answer

Three reasons.

Reason 1: You can't fix a Step 2 challenge by adding more evidence to a single criterion. A Step 2 challenge is about the whole picture, so adding a third expert letter on C5 doesn't help — the adjudicator already conceded your C5 evidence. What they're questioning is whether C5 + C6 + C7 + C8 together establish the level of acclaim required.

Reason 2: "Small percentage at the very top" is subjective. Unlike "major significance" or "nationally recognized award," which have specific regulatory definitions, the "very top of the field" standard is inherently comparative and qualitative. The adjudicator's judgment matters. Your job is not to prove the criteria again — it's to persuade the adjudicator to see the same evidence differently.

Reason 3: Your original petition probably didn't have a Step 2 argument at all. The overwhelming majority of first-draft petitions we see in the Lumova dataset treat the final merits determination as a one-paragraph boilerplate conclusion ("For the foregoing reasons, petitioner meets the requirements..."). When the RFE challenges Step 2, the petitioner has no existing argument to build on — they have to create the totality argument from scratch in the response.

Meet Dr. Li: A Composite Step 2 Case

Dr. Mei Li is a Chinese-born mathematician at Princeton, 36 years old, with a PhD from Tsinghua University and postdoctoral training at Stanford. Her research is in algebraic topology. She has 38 publications in top mathematics journals, an h-index of 18, 520 citations, three conference program-committee appointments, and a named postdoctoral fellowship from the NSF. She filed her EB-1A claiming Criteria 4 (peer review), 5 (original contributions), 6 (scholarly articles), and 7 (critical role at Princeton).

She received an RFE that said:

Notice the structure. USCIS accepted two criteria, rejected two, and also flagged a Step 2 concern. This is a hybrid RFE — part Step 1, part Step 2 — and it's actually more common than a pure Step 2 RFE.

Dr. Li's response strategy had to address all three issues:

1. Re-argue C5 with new evidence of downstream adoption.

2. Re-argue C7 with clearer documentation of her specific leadership role on a $3.2M NSF grant.

3. Build a genuine Step 2 argument from the ground up.

The first two were straightforward. The third was the hard part.

How to Write a Step 2 Response Section

A strong Step 2 response section is 3-5 pages of argument that walks the adjudicator through the totality of the evidence and makes an explicit case for why the combination demonstrates acclaim. Here's the structural template.

Step 2 Section Template

Paragraph 1: Restate the standard. Quote the regulatory language. "The regulation at 8 C.F.R. § 204.5(h)(2) defines extraordinary ability as 'a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.' Under the Kazarian two-step framework as implemented by USCIS policy guidance, meeting the required number of criteria under Step 1 establishes eligibility to proceed to Step 2, where the adjudicator must evaluate the totality of the evidence to determine whether it demonstrates sustained national or international acclaim."

Paragraph 2: Identify the specific evidence supporting totality. List the criteria you met and the strongest evidence under each. Be specific. "Petitioner has established eligibility under Criterion 4 (peer review of manuscripts for X, Y, Z journals; service on program committees for 2022 and 2023 AMS annual meetings), Criterion 6 (38 publications including 7 first-author papers in top-tier venues such as Annals of Mathematics and Inventiones Mathematicae, with 520 independent citations), Criterion 5 (the Li-Conjecture proof, adopted and built upon by at least 14 independent research groups), and Criterion 7 (co-principal investigator on the NSF grant 'Topological Invariants of High-Dimensional Manifolds,' $3.2M, 2021-2025)."

Paragraph 3: Argue the combination, not the individual. This is where most responses fall short. Don't just list criteria — explain why the combination demonstrates acclaim. "The combination of Criteria 4, 5, 6, and 7 demonstrates sustained acclaim in a specific and unusual way. Petitioner is not simply a prolific author (Criterion 6); she is an author whose work is actively used by independent researchers (Criterion 5's downstream adoption) AND who is trusted by peer institutions to evaluate the work of others at the highest level (Criterion 4's program committee service) AND who leads research at one of the top mathematics departments in the world (Criterion 7's NSF-funded PI role). This is the profile of a researcher who has moved beyond producing work to shaping the direction of the field itself."

Paragraph 4: Address the "very top of the field" standard head-on. Name the specific benchmark that puts the petitioner at the top. "USCIS policy under the Kazarian framework requires the petitioner to be among the small percentage at the very top of the field of endeavor. In the field of pure mathematics, the conventional benchmarks of top-tier acclaim include: publication in Annals of Mathematics and Inventiones Mathematicae (two of the three highest-ranked general mathematics journals in the world), receipt of named postdoctoral fellowships at top-ten departments, co-principal investigator status on major NSF grants, and independent adoption of one's proof techniques by other researchers. Petitioner meets all four of these benchmarks. There are approximately 1,200 research mathematicians worldwide who publish regularly in top-tier journals; petitioner is among them. There are approximately 150 research mathematicians holding named postdoctoral fellowships at top-ten departments in any given year; petitioner is among them. By any objective benchmark for 'the very top of the field,' petitioner's profile meets the standard."

Paragraph 5: Pre-empt the most likely counter-argument. What would an adjudicator say in response? Say it for them. "The adjudicator may note that petitioner has not won a Fields Medal, the most prominent award in mathematics. This is an inappropriate benchmark for the 'very top of the field' standard: the Fields Medal is awarded to four mathematicians worldwide every four years, representing approximately 0.001% of research mathematicians. The EB-1A standard is 'the small percentage at the very top' — not 'the single most prominent individual in the world.' USCIS policy explicitly notes that the very top standard is met through a variety of forms of evidence, not only through the most prestigious awards."

Paragraph 6: Conclude with the totality statement. "Taken together, the evidence establishes that petitioner has sustained national and international acclaim in the field of pure mathematics and that she is one of the small percentage who have risen to the very top of the field of endeavor. The totality of the evidence — the publications, the citations and downstream adoption, the peer review responsibilities, the leadership of major grant-funded research — forms a coherent pattern of acclaim that meets the regulatory standard. Petitioner respectfully requests that this petition be approved."

This template produces a 3-5 page Step 2 section that actually responds to the adjudicator's concern. It's not rocket science, but it requires careful attention to what the "totality of the evidence" actually means.

What Does NOT Work in a Step 2 Response

Several common approaches do not work for Step 2 RFEs. Avoid them.

Approach 1: Adding a dozen more expert letters. Expert letters opining that the petitioner is at the top of the field do not resolve Step 2 questions. The adjudicator has already seen opinions; they want a structural argument about totality.

Approach 2: Listing accomplishments without connecting them. A bullet-point list of credentials doesn't help the adjudicator see the totality. You have to explicitly explain why the combination is meaningful.

Approach 3: Arguing that counting criteria is enough. "Petitioner has met five criteria, which exceeds the three-criterion threshold, and is therefore eligible." This is the Pre-Kazarian argument that USCIS is specifically rejecting with a Step 2 RFE. Do not retreat to counting.

Approach 4: Citing unrelated achievements. "Petitioner has also received a community service award and published an op-ed in the New York Times." These are not Step 2 arguments — they're tangential credentials that dilute the focus on actual sustained professional acclaim.

Approach 5: Attacking the adjudicator's reasoning. "USCIS's tentative determination is inconsistent with the record and appears to ignore significant portions of the evidence submitted." Even if technically true, this tone does not win cases. Adjudicators are human; defensiveness does not persuade them.

Should You Hire an Attorney for a Step 2 RFE?

Yes — or at minimum, have experienced counsel review your Step 2 response draft before filing. Step 2 arguments are legal rhetoric more than evidence collection, and the marginal value of experienced counsel is highest when the work is rhetorical rather than documentary.

Focused engagement costs for Step 2 RFE review typically range from $1,500 to $5,000, substantially less than full representation but enough to get experienced eyes on the brief before submission. The return on investment is high when the alternative is a denial and potential refile.

FAQ

Q: If I only claimed three criteria in my original petition and USCIS conceded all three, can I still receive a Step 2 RFE?

A: Yes. Meeting the three-criterion threshold is necessary but not sufficient. You can still fail Step 2.

Q: Is a Step 2 RFE the same as a NOID?

A: No. A Step 2 RFE is still an RFE — it asks for more argument or evidence before the adjudicator decides. A NOID is a tentative denial; the adjudicator has already concluded the petition should be denied and is giving you a chance to rebut. Step 2 concerns can appear in either. See our NOID vs RFE article.

Q: Can I preempt a Step 2 RFE in my original petition?

A: Yes — and you should. Every original petition should contain a 3-5 page Step 2 final merits section, not just a one-paragraph boilerplate conclusion. This is the single most impactful addition to pre-filing preparation.

Q: Does Lumova's audit check Step 2 quality?

A: Yes. The Kazarian two-step analysis is a core output of the audit. The Step 2 score is measured against patterns in the AAO dataset and is frequently the weakest score in first-draft petitions. Run your audit →

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