Liu Yu and Bateman Law Firm

EB-1A

1.     Overview

 

The EB-1A classification is available for individuals with extraordinary ability in the sciences, arts, education, business, and athletics. Extraordinary ability is defined 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.”  This must be demonstrated by sustained national or international acclaim and recognition in the field through extensive documentation. The advantages of EB-1A classification compared to other employment based classifications such as EB-2 and EB-3 are as follows:

Ø  Self-sponsorship is allowed and thus no job offer or permanent job position is required (the Petitioner is also the Beneficiary);   

Ø  No foreign labor certification is required; and 

Ø  Priority dates are usually current for visa processing after I-140 approval.

 

2.     Requirements

 

A foreign national may qualify as a person of extraordinary ability based on a one-time achievement in the form of a major, internationally recognized award. Congress provided the example of the Nobel Prize, but there are many awards that may establish that a beneficiary is a person of extraordinary ability. For example, a Pulitzer Prize, an Academy Award, an Olympic Medal, or serving as a key player on a professional sports team that wins a national championship should qualify. Absent such award, the foreign national may qualify if he or she can document three of the following criteria in the field of endeavor:


1)     Receipt of lesser nationally or internationally recognized prizes or awards for excellence;

2)     Membership in associations in the field which demand outstanding achievement of their members;

3)     Published material in professional or major trade publications or other major media;

4)     Judging the work of others, either individually or on a panel;

5)     Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;

6)     Authorship of scholarly articles in professional or major trade publications or other major media;

7)     Evidence that the foreign national’s work has been displayed at artistic exhibitions or showcases;

8)     Performance of a leading or critical role in distinguished organizations;

9)     Commanding of a high salary or other significantly high remuneration in relation to others in the field;

10)  Commercial successes in the performing arts; or

11)  Other comparable evidence, if applicable.

 

In addition, the petition must also demonstrate that:  The foreign national seeks to enter the United States to continue working in the field of endeavor; and the foreign national’s entry into the United States will substantially benefit the United States prospectively.

 

3.     Case Law

 

Originally, qualification analysis consisted of examining the submitted documentation in each of the above-mentioned categories. If USCIS found that three of the categories were sufficiently documented, extraordinary ability would be found.

 

However, a 2010 decision by the 9th Circuit Court of Appeals in Kazarian v. USCIS criticized the USCIS approach, finding that USCIS could not impose additional standards on the already detailed evidentiary requirements and suggesting that analysis might be relevant to a final merits determination. From that suggestion, USCIS started implementing the following new, two-step adjudicative approach:

 

Ø  First, the evidence is evaluated to see if the required number of categories is fulfilled. While the “quality and caliber” of the evidence should be evaluated, no determination is made at this step regarding whether the individual has risen to the top of the field of endeavor or has sustained national or international acclaim. If the adjudicator concludes that the required number of categories has not been fulfilled, the petition will be denied.

 

Ø  Next, if the required number of categories has been fulfilled, the adjudication moves to a “final merits determination,” by which the quality of the evidence is considered and the evidence is evaluated together to determine if the definition of extraordinary ability is met.

  

4.     Petition Process

 

An EB-1A petitioner must submit extensive supporting evidence with a Form I-140, Immigrant Petition for Alien Worker, to show that he or she has enjoyed sustained national or international acclaim. The petition package requires a series of forms and supporting evidence. Specific filing contents for the petition typically include:

 

·        Cover letter or memorandum;

·        Index of submitted exhibits;

·        Filing fee;

·        Required USCIS forms (Form I-140, Form G-28, and Form G-1145, as applicable);

·        Supporting Evidence; and

·        Immigration status documents.

 

Sometimes USCIS will issue a Request for Evidence (RFE), asking for further documentation of a specific nature. Receiving an RFE does not always mean that a case has any significant problems. Cases of all types are approved after an RFE has been received, provided that an appropriate response is made.

 

After the Form I-140 is approved, the EB-1A petitioner can obtain a Green Card through consular processing abroad, or, if eligible, by filing a Form I-485, Application for Adjustment of Status, in the United States.

 

5.     Analysis of Criteria

 

A successful EB-1A application starts with an impressive resume. While immigration law is generally highly technical, the EB-1A petition is in many ways more open-ended and flexible than other immigrant visa categories.

 

(1)   One-Time Achievement

 

Major international awards are usually reported in international media regardless of the nationality of the recipient, are familiar “to the public at large,” and include substantial cash prizes. Adjudicators tend to focus on whether an award has been reported by international media outlets when evaluating whether it qualifies as major and internationally recognized, so it is advisable to submit as many international media articles as possible pertaining to the award.

 

(2)   Other Evidence of Sustained National or International Acclaim

Evidence of Receipt of Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence in the Field of Endeavor


A petitioner may satisfy this criterion by demonstrating receipt of a prize or award for his or her work that is recognized either nationally or internationally. When used as one of the criteria, recognition of the award on a national level is sufficient. However, the award must be of a type that indicates the recipient’s excellence and achievement in his or her field, and it must not be merely local, regional or provincial in nature.

 

Nomination for an award is not accorded as much weight as winning the award, although nomination for very prestigious awards, such as an Academy Award or Grammy, may be accorded some weight.

 

USCIS may also consider the number of prize recipients or awardees, as well as any limitations on competitors.

Evidence of Membership in Associations in the Field for Which Classification Is Sought, Which Require Outstanding Achievements of Their Members, as Judged by Recognized National or International Experts in Their Fields

 

This criterion may be satisfied by demonstrating that the foreign national is a member of an association and that membership is exclusive in that the association requires outstanding achievement as a precondition of membership. The evidence should show that the beneficiary has been judged by recognized national or international experts as having attained outstanding achievements in the field.

 

Please note that outstanding achievement should be an essential condition for admission to membership. Membership in associations to which all individuals in a particular profession or occupation are expected to belong, such as a state bar association for attorneys, is not evidence of extraordinary ability. Membership in associations that merely require a certain level of education or years of experience in the field also does not demonstrate extraordinary ability, and neither does membership available to anyone who pays a fee.

 
Published Material About the Foreign National in Professional or Major Trade Publications or Other Major Media, Relating to the Foreign National’s Work in the Field for Which Classification Is Sought

 

This criterion may be satisfied by providing published material about the beneficiary that supports the proposition that the beneficiary has risen to the very top of his or her field. The material should be primarily about the beneficiary. For example, articles that merely cite to the beneficiary’s work are not helpful unless the beneficiary is specifically cited as being authoritative in the field of endeavor. Additionally, the publication should either be in a professional or major trade publication, or in a major media publication. To qualify as major media, the publication should have significant national or international distribution.

 
Evidence of Participation, Either Individually or on a Panel, as a Judge of the Work of Others in the Same or an Allied Field of Specialization for Which Classification Is Sought

 

To satisfy this criterion, a foreign national must have served as a judge of the work of others in the field. Generally, this criterion only requires evidence that the alien participated as a judge of others in his field and not that an alien also demonstrate that such participation was the result of his having extraordinary ability.

 

For example, peer reviewing for a scholarly journal or serving as a member of a Ph.D. dissertation committee that makes the final judgment on whether the candidate’s work satisfies the doctoral degree requirements will satisfy this criterion. A petitioner may also provide an explanation of the significance of his or her experience in judging the work of others in the field.

 
Evidence of Original Scientific, Scholarly, Artistic, or Business-Related Contributions of Major Significance to the Field

 

A petitioner may satisfy this category by demonstrating both that the beneficiary has made original contributions to the field, and that these contributions are major and significant. Specifically, the petitioner should include substantial documentation to establish how the work is considered original and how it has made a major contribution of significance to the field of endeavor compared to all others in the field, and the credentials of the individual, institution, or organization making the claim. Merely showing that the beneficiary has published original work does not satisfy this criterion. The type of evidence relevant to this criterion may vary based on the beneficiary’s field.

 
Evidence of Authorship of Scholarly Articles in the Field, in Professional or Major Trade Publications, or Other Major Media

 

USCIS defines a scholarly article in academia as an article that “reports on original research, experimentation, or philosophical discourse, written by a researcher or expert in the field who is often affiliated with a college, university, or research institution,” and in other fields as “written for learned persons in that field.” A scholarly article should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article.

 

Scholarly articles should be accompanied with information to clearly identify the circulation and intended audience of the publication. It is also crucial to establish the significance or value of the published material and how it has set the beneficiary apart as one of the small percent who has risen to the very top of his or her field.

 
Evidence of Display of the Foreign National’s Work in the Field at Artistic Exhibitions or Showcases

 

Evidence that the beneficiary’s work has been displayed at artistic exhibitions or showcases or in performances satisfies this criterion. It must be shown that the venues, which can be physical or virtual, were artistic in nature.

 

For the evidence in this category to bolster the final merits determination, it is advisable to demonstrate that the exhibition or showcase itself is of distinction and that the beneficiary’s work is significant to the exhibition.

 

The exhibition’s prestige or recognition should not be limited to one region or ethnic group, but should be widespread to support the proposition that the beneficiary has achieved national or international acclaim. USCIS may decline to apply this criterion to performing artists, as acclaim for performing artists is generally not established merely by performing in public, but rather by consistently attracting a substantial national or international audience. In addition, presentations at conferences usually should not be used for this criterion.

 
Evidence That the Foreign National Has Performed a Leading or Critical Role for Organizations or Establishments That Have a Distinguished Reputation

 

To satisfy this criterion, a petitioner must show that the beneficiary has performed a leading or critical role for an organization, and that the organization is “distinguished,” whether because the organization or establishment has a distinguished reputation or has hosted other distinguished productions in the recent past.

 

It is best if the role played by the beneficiary was leading or critical for the organization as a whole and not simply for one department or division of the organization. Simply performing well in one’s job and earning the respect and praise of one’s colleagues or superiors is insufficient to establish that the beneficiary has performed a leading or critical role for an organization.

 
Evidence That the Foreign National Has Commanded a High Salary or Other Significantly High Remuneration for Services, in Relation to Others in the Field

 

To satisfy this criterion, a petitioner must show that the beneficiary has earned a salary that is high in relation to others in his or her field of expertise. This criterion is comparative and not absolute, because the regulation uses the language “in relation to others in the field,” which indicates that the salary of the alien should be judged in relation to others who are in comparable circumstances.

Evidence of Commercial Successes in the Performing Arts, as Shown by Box Office Receipts or Record, Cassette, Compact Disc, or Video Sales

 

This criterion requires evidence of the foreign national’s commercial success in the form of receipts or sales. Demonstrating a high volume of sales and box office receipts is crucial to a petition that seeks to satisfy this criterion.

 
Comparable Evidence Where the Regulatory Criteria Do Not Apply to the Field

 

If the beneficiary’s field is such that the regulatory criteria “do not readily apply,” then “the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.” A petitioner must show why a specific criterion on the list of 10 does not apply and provide comparable evidence with respect to that criterion. USCIS views comparable evidence as substituting for one of the other specified criteria, not creating a separate criterion that can substitute for all the specified criteria—at least three must still be fulfilled.

 

For example, models do not author scholarly articles in their field that and are published in professional or major trade publications or other major media, but they do have published magazine covers and tear sheets, and they do have published blog articles, etc. Thus, they may give an explanation as to why their submitted evidence is comparable and should be accepted.

 

(3)   Benefit to the United States

 

The Immigration and Nationality Act requires that a beneficiary’s “entry into the United States will substantially benefit prospectively the United States,” but the regulations regarding immigrant petitions for aliens of extraordinary ability do not address this element. Because “aliens who work in the area of their extraordinary ability will substantially benefit the interests of the United States in some fashion,” they will generally pass this test.

 

6.     Letters of Recommendation 

 

USCIS takes the position that letters of endorsement “while not without weight, should not form the cornerstone of a successful claim for the extraordinary ability immigrant classification.” Nevertheless, letters of endorsement from experts in the beneficiary’s field often constitute a significant portion of the evidence a beneficiary is able to produce to demonstrate that he or she meets the extraordinary ability criteria.

 

Thus, it is advisable to include letters of endorsement, but to do so in a way that strengthens the petition and is consistent with USCIS guidance on point. One major mistake in writing a recommendation letter is to believe that long letters are good letters. There is no rule regarding the length of a recommendation letter. Effective recommendation letters are two to three pages in length. There are four basic ingredients to an effective letter:

         
        a.
Writer’s Credentials: The writer must establish qualifications to issue an opinion.  In this regard the writer will quite often discuss his or her current job title, honors received, leadership             positions in the field, and any other items that will establish the writer’s qualifications.

        b. Writer’s familiarity with the petitioner: The writer must establish how he or she is familiar with the petitioner’s work. Examples could be: “I have supervised the Applicant” or “I have             collaborated with the Applicant.”

        c. Petitioner’s work: The writer must discuss the applicant’s work or accomplishments. It is not necessary that the writer discuss in great detail all of the petitioner’s accomplishments but             should at least discuss those that he or she is most familiar with.

        d. Importance of the Petitioner’s work: The writer should also discuss how and why the Petitioner’s work is important or will benefit the United States.

 

7.     Strategizing the Case

 

Assessing talent is inherently subjective. The adjudicators and the regulatory test focus on the recognition of that talent rather than the talent itself. As a result, an experienced attorney will be able to strategize the case and guide the client to develop evidence of recognition. For those considering the EB-1A classification, we recommend the following tips:

 

Ø  Field of Endeavor. One of the most important aspects of an EB-1A application is properly defining the “field of endeavor.” Only when the “field of endeavor” has been strategically defined can USCIS determine whether the applicant is one of that small percentage who has risen to the very top of the field.

 

Ø  Thorough Documentation is Critical. Establishing extraordinary ability in one’s field requires substantial documentation that meets the parameters for each type of evidence listed at 8 C.F.R. § 204.5(h)(3).  USCIS will consider the quality and caliber of evidence submitted, as opposed to quantity.  Expect USCIS to issue a Request for Evidence if all of the desired evidence is not initially provided. Experienced immigration attorneys can communicate what types of supporting documents you will need to gather in order to demonstrate your “extraordinary ability” in the field. They can also provide recommendations when supporting documentation is not readily available.

 

Ø  The Emphasis is on Quality over Quantity. Although the criteria in some of the categories are written in the plural, it is possible that the presentation of a single piece of evidence in a category may be sufficient. For example, although the regulatory language refers to “associations” in the plural, membership in a single association that meets the criteria may suffice.

 

Ø  Final Merits Analysis is Subjective.  USCIS adjudications of EB-1A applications include a “final merits” determination of whether the evidence submitted in totality is sufficient to demonstrate that the applicant meets the required high level of expertise. This has become a rather subjective test and has brought inconsistent adjudications by USCIS officers. Each EB-1A application will need a robust final merits argument written by a skilled immigration attorney. Experienced immigration attorneys are well versed in the subjective reasoning underpinning this criterion. If the Form I-140 has been denied, an experienced immigration attorney can also offer strategic options to move forward with an EB-1A application, including refiling the petition with USCIS or appealing with the AAO.

 

8.     New Policies

 

The U.S. Department of Homeland Security (DHS) published a rule on November 18, 2016, entitled Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, which went into effect on January 17, 2017.  The stated purpose of the new regulation is to improve the ability of U.S. employers to hire and retain high-skilled foreign workers, and to increase the ability of those workers to pursue new employment opportunities. The new rule adds much needed fixes such as adding grace periods after termination of employment and the ability to change employers during the adjustment of status process. Highlights of the new provisions and benefits related to EB-1A include the following:

 

Ø  Form I-140 Revocation and Priority Date Retention

 

The regulation allows the beneficiary of an approved Form I-140 petition to retain its priority date unless the petition is revoked due to fraud, willful misrepresentation, material error by USCIS, or the invalidation or revocation of the underlying foreign labor certification. A material error involves the misapplication of statutory or regulatory requirements to the facts on hand. This is a small, yet significant improvement from the initially proposed version of the rule, which had allowed for loss of a priority date based on just a USCIS “error,” rather than a “material error.” However, this improvement still leaves some level of insecurity for the Form I-140 beneficiaries that an earlier priority date may potentially be lost if USCIS second-guesses itself years after the Form I-140 is approved.

 

Ø  Form I-140 Remains Valid Following Withdrawal or Business Termination – 180 Day Rule

 

The new rule also provides that, once 180 days have passed after the approval of a Form I-140 petition, USCIS will not revoke such approval solely based on the petitioner’s withdrawal of the petition or termination of the business. The same holds true in cases where 180 days or more have passed after a Form I-485, Application for Adjustment of Status, has been filed based on such approved Form I-140.

 

Ø  EAD Adjudication and Automatic Extension for up to 180 Days

 

DHS has eliminated the requirement that USCIS adjudicate a filed Form I-765, Application for Employment Authorization (EAD), within 90 days. DHS maintains that the agency still intends to adjudicate applications within the 90-day timeframe, but the USCIS will no longer be mandated to do so by regulation. In order to help prevent gaps in employment authorization, DHS will allow most EAD applicants to apply for extensions up to 180 days prior to their EAD expiration date.

 



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