1. The Distinction of EB1 Aliens with Extraordinary Ability Application
For EB1 Extraordinary Ability petition (EB-1A or EB1-EA), the job offer requirement for alien applicants who wish to immigrate to U.S. is waived by USCIS. Generally, an alien applicant must undergo the long Labor Certification process. But if the alien applicant can prove that he or she is an alien with extraordinary ability, and involved in an activity which could prospectively benefit the U.S. national interest, then the alien applicant may be eligible to file for EB1-Extraordinary Ability application, which provides many advantages over the usual U.S. permanent residency application process.
The EB1-Extraordinary Ability immigration category is reserved for those at the top of their field who have a record of sustained national or international acclaim. This immigration category is similar to EB1-Outstanding researchers and professors, but does not require a permanent position. For qualified alien applicants, the EB-1A is an excellent alternative to Labor Certification Green Card application, because it is much faster.
The question, "which should I file for: EB1-Extraordinary Ability or National Interest Waiver?" is often asked by people. While it easy to understand why there may be confusion over which category one falls into, a quick analysis of the requirements of each should clear things right up.
The distinction between the categories is marked by the use of two terms: "Extraordinary Ability" (EB-1A) and "Exceptional Ability" (EB2 National Interest Waiver). Each of these classifications involve distinctive minimum requirements. To understand which category may be appropriate for an alien applicant, the applicant needs to understand the EB-1A requirements, and meet at least three (3) of the criteria.
2. The Definition and Requirements of Aliens with Extraordinary Ability
According to USCIS, the EB1 Extraordinary Ability classification applies to individuals with extraordinary ability in the sciences, arts, education, business, or athletics. The individual must demonstrate that they have sustained national or international acclaim, and that their achievements have been recognized in the field of expertise, indicating that they are one of that small percent who has risen to the top of their field of endeavor. The individual must plan to continue to work in their area of extraordinary ability and must substantially benefit the United States.
The term "extraordinary ability" is defined by USCIS 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". The initial evidence which must be submitted should establish that the alien "has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise."
Extraordinary ability aliens fall within the employment-based first preference. The requirements for the first preference classification are as follows:
a) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation;
b) the alien seeks to enter the United States to continue work in the area of extraordinary ability; and
c) the alien's entry into the United States will substantially benefit prospectively the United States.
The EB1-Extraordinary Ability category provides the alien with the same immigration benefits as the EB2 National Interest Waiver, but without the need to prove that the alien's work is in the national interest of the United States. An EB1-Extraordinary Ability application has strong evidentiary requirements which include the following:
- The alien must have a demonstrated ability through sustained national or international acclaim; and
- This extraordinary ability must be recognized in the alien's field through extensive documentation.
The followings are some major requirements to qualify for an EB1 extraordinary ability application. For each requirement, petitioner should submit evidence to meet the requirement. USCIS will carefully evaluate the submitted evidence to make a merits determination. The submission of the required initial evidence itself does not establish the alien applicant's extraordinary ability.
3. The EB1 Aliens with Extraordinary Ability Application Requirement #1 - Have Extraordinary Ability in Your Field
The first requirement for EB1 Extraordinary Ability application is that you must be able to establish that you have extraordinary ability in your field. The EB-1 extraordinary ability immigrant visa is for alien applicants who are recognized as being at the very top of a field, and who are coming to U.S. to continue their work in the field.
To establish the eligibility EB-1 extraordinary ability application, the petitioner must demonstrate sustained national or international acclaim, and that the alien applicant's achievements have been recognized in the field by showing:
a) Received a one-time major internationally recognized award (such as Nobel Prize); or
b) Meet at least 3 of the 10 requirements below, and the evidence shows that you are among the small percentage of individuals that have risen to the very top of the field:
The 10 criteria for EB1-Extraordinary Ability immigration category are as follows:
1) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor
The receipt of lesser nationally or internationally recognized prizes is not like internationally recognized award such as a Nobel or Pulitzer Prize.
This criterion is intended for the prestigious awards. It is important to include not just proof of the award, but proof that the award is important in the field. This may include the judging criteria or evidence of media coverage, and some degree of prestige must attach to the given award.
2) Documentation of the alien's 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 disciplines or fields
Associations that are open to all members of a given profession may be considered, but associations that limit membership to only the most accomplished members of the profession are certainly more valuable.
Specialized scholars frequently belong to associations. However, most scholars with the appropriate degree are eligible for such associations upon payment of a membership fee. For a membership to have weight in this category, there must be a higher selective standard for admission to the association. The alien applicant should submit evidence of selective membership criteria along with evidence of membership in the association.
3) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation
The material must concern the work in the field. Publications could range from journals specific to the field to major newspapers.
To satisfy this criterion, the published material should be at the national or international level. Articles in local newspapers or internal company reports do not qualify. Moreover, standard academic citations do not count as published material about the alien beneficiary.
4) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought
Participating in the peer review process of a scientific article or acting as a member of a thesis review committee may fulfill this requirement.
Reviewing grants or articles can also satisfy this criterion, if the review request is directed particularly to the alien beneficiary. Generic letters or requests passed down from an advisor or mentor can not be accounted.
5) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field
This standard is wide open. Basically, the USCIS will base its judgment of the contribution of the applicant on the letters of support that others in the field submit.
Evidence submitted in this category must address the international reputation standard. Simply publishing or presenting an alien’s work or receiving grant funding is common in research, and does not indicate that the academic community has taken notice of his or her work. Patents or patent applications carry little weight unless they demonstrate an international reputation in the field, and petitioner should document the widespread use or application of the patent.
6) "Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media
This refers to articles that the alien wrote concerning his or her work. The publications can range from major trade journals to mass media. Although the regulations refer specifically to "articles," other forms of publication such as visual media may fulfill this requirement.
It is preferable that the publications are in peer-reviewed academic journals, and those with international circulation. When submitting evidence under this category, the petitioner must demonstrate that the publication record rises above that of the average scholar. One method of doing so is to show that the alien beneficiary’s articles have been widely cited by independent researchers in the field.
7) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. The regulations do not mention how prestigious the exhibition must be.
8) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
This could be performing a critical or leading role for organizations that have a distinguished reputation, or serving as an essential researcher for an important laboratory.
9) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.
The regulation requires that the salary or remuneration be high in relation to others in the field, so an post-doctor needs not make as much as a professional engineer.
10) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
This can be demonstrated by box office receipts from the films or plays, record sales, or selling a video documentary to a network for a notable sum.
If above criteria do not apply to your situation, you can also submit "comparable evidence" to establish your eligibility for EB1 extraordinary ability. But there is no comparable evidence for the one-time achievement of a major, international recognized award.
4. The EB1 Extraordinary Ability Application Requirement #2 - Continue to Work in Your Area of Extraordinary Ability
The second requirement for EB1 Extraordinary Ability application is that you must be able to establish that you are coming to the United States to continue to work in your area of extraordinary ability. Some of the evidence you may submit to demonstrate that you are coming to the United States to continue to work in your area of extraordinary ability includes:
Letters from current or prospective employers;
Documents evidencing your prearranged commitments (such as contracts);
A statement detailing your plans on how you intend to continue working in your field in the United States.
5. What is the "Sustained" National or International Acclaim for EB1 Extraordinary Ability
An application for an EB1 extraordinary ability must submit evidence that the alien applicant has "sustained" national or international acclaim, and that the alien applicant's achievements have been recognized in the field.
An alien applicant may have achieved extraordinary ability before, but failed to maintain the level of acclaim thereafter. For USCIS to determine whether the beneficiary has the “sustained" national or international acclaim, such sustained acclaim must be continuing without termination or interruption. If an alien applicant was recognized for achievement several years ago, USCIS adjudicators will decide whether the alien applicant has maintained an acclaim level.
On the other hand, a one-time major achievement such as a Nobel Prize, may satisfy this requirement, if the alien has reached the summit of his or her occupation. However, without such a major and international recognized award, the petitioner cannot rely on the alien beneficiary's past achievements to establish the alien's eligibility for EB1 extraordinary ability. The EB-1A regulations also allow the petitioner to submit evidence that the alien applicant has the sustained national and international acclaimed by submitting evidence of at least three of the ten EB-1A criteria.
6. How to Determine Whether an Alien Applicant Has “Sustained" National or International Acclaim?
For EB1 Extraordinary Ability immigrant application, it must be accompanied by evidence that the alien applicant has sustained national or international acclaim, and the alien applicant's achievements have been recognized in the field of expertise.
For USCIS to determine whether an alien applicant has enjoyed “sustained" national or international acclaim, such acclaim must be maintained for over a long period of time. But the word “sustained” does not imply an age limit on the alien applicant. An alien could be young in his/her career and still may show sustained national or international acclaim.
Also, there is no time frame for the word of “sustained.” If an alien applicant was recognized for an achievement, the USCIS officer will determine whether or not the alien applicant continues to maintain the acclaim level in the field. It is possible that an alien applicant has achieved the national or international acclaim previously, but failed to maintain the acclaim level thereafter.
1) If you are able to show that you meet at least 3 of the above regulatory criteria, USCIS will then review all of the evidence in the record in its totality to determine if it is more likely than not that you have sustained national or international acclaim and are one of that small percentage who has risen to the very top of the field of endeavor. As such, it is important to show, for example, the significance of the work of others you judged, the significance and importance of the scholarly works you created, and the degree to which the salary or other remuneration you commanded was higher than others in your field.
2) Certain qualitative factors have been included in the determination. The stronger the evidence is in terms of your achievements in the field compared to others, the more efficiently and accurately USCIS can process your petition.
7. The USCIS' Evaluation of Submitted Evidence in Support of a Petition for an Alien of Extraordinary Ability
The submitted evidence should demonstrate that the alien applicant has sustained national or international acclaim, and the alien applicant’s achievements have been recognized in the field of expertise. The evidence should include documents of a one-time achievement (a major international recognized award), or at least three of the ten types of evidence list above. The submitted documents should establish that the alien applicant can meet the requirements as an alien of extraordinary ability.
For a Form I-140 application as an alien of extraordinary ability, USCIS adjudicators will look at the quality not the quantity of the evidence. The USCIS adjudicators will evaluate the submitted evidence to determine if the alien applicant has demonstrated that he or she has received sustained national or international acclaim in the field of endeavor.
USCIS will evaluate the quality of submitted evidence on a case-by-case basis, to determine whether the evidence submitted satisfies the qualification requirements to establish the eligibility for EB-1A immigration visa. If the ten criteria for EB-1A do not apply, the alien applicants can also submit comparable evidence to establish the EB-1A eligibility. When the comparable evidence is submitted, USCIS may require the petitioner to explain why the ten criteria for EB-1A do not apply.
The USCIS' adjudication guideline also include:
The evidence submitted to USCIS in supporting the EB-1A application does not need to use the words "extraordinary ability" specifically. Rather, the supporting documents should be apparent that the alien applicant's contributions to a field are qualifying the extraordinary ability requirements.
In some cases, the submission of voluminous documents may not contain sufficient evidence to establish the applicant’s eligibility for EB-1A qualification. For all cases, the evidence submitted for an EB1 Extraordinary Ability application must establish that the alien beneficiary "is one of that small percentage who have risen to the very top of the field of endeavor."
An alien applicant may be stronger in one particular area than in others, but the overall impression should be that the alien applicant is of extraordinary ability. The USCIS adjudicators should not predetermine the evidence they think the alien applicant should submit, and deny the EB-1A application if that particular type of evidence is not there.
In a regular case, if an alien applicant is extraordinary, there should be published articles about the alien applicant's work. But an USCIS adjudicator will not deny the EB-1A application, because no published articles were submitted, if evidence of meeting 3 EB-1A criteria has been submitted that demonstrates the alien applicant is in fact extraordinary.
If an USCIS adjudicator needs to request additional evidence, the adjudicator may provide explanation of the deficiencies in the submitted evidence, or may request for evidence that the petitioner could provide to corroborate the statements made in the original petition documents.
8. USCIS' View of the Scientific Citations for EB1 Extraordinary Ability Application
In scientific fields, citations are required in most cases when a researcher uses another scientist's research findings of for his or her own research. These citations are normally not considered to be probative for the alien applicant's extraordinary ability in the field. When evaluating citations to an alien’s work, USCIS will evaluate the submitted citations to determine the significance of the alien applicant’s original contribution to the field.
The frequent citations by independent researchers may show the interest in alien’s work, and may serve as evidence that the alien applicant is indeed an authoritative in the field. In some situations, alien’s significant and original contributions in a field can bring the subsequent references and citations.
As an example, consistent references and citations by other researchers for an advanced technology developed by the alien applicant would be relevant to the alien's extraordinary ability. But other researcher's citations to the alien’s similar research techniques without accrediting any significant findings to the alien applicant may not be probative.
USCIS understand that scientific researchers normally give credit to other researchers in the field to avoid potential plagiarism. Such credit may not accredit the merits of the other researchers' work. Thus, USCIS will evaluate the submitted evidence to determine if the citations are an indication of the alien's extraordinary ability.
9. USCIS Adjudicator's Wide Discretion in Adjudicating the EA-1A Petition
The alien applicants should be aware that approvals in the EB1 Extraordinary Ability (EA-1A) petitions are difficult to obtain. The legal standard requires showing that the alien applicant has reached the very top of his or her field. The legal standard in the EB1 Extraordinary Ability category is high. While this category was intended to apply to a small group of extraordinary individuals, it was not meant to be unattainable.
There are alien applicants who are able to demonstrate their extraordinary abilities in the fields of science, art, education, business, and athletics. It is necessary to establish that this extraordinary ability has been demonstrated by sustained national or international acclaim, and that the achievements have been recognized in the field with extensive documentation.
In some EB1 Extraordinary Ability petition cases, additional challenges are applied in this category by USCIS adjudicators, which are going beyond the high standard that is appropriate for the EA-1A category, and creating novel requirements.
USCIS adjudicators have wide discretion in adjudicating the EA-1A petition cases, and the complexity of the evidence presented. USCIS adjudicators sometimes apply heightened legal standards for EB1 Extraordinary Ability petitions to support a negative decision, or a Request For Evidence (RFE)
In such cases, it can be difficult to challenge the ineligibility finding made by the adjudicators, or provide evidence to reply the Request For Evidence. Therefore, it is necessary to carefully analyze the actual legal criteria, and the application of the criteria by the adjudicator to the often highly complex individual facts.
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