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The Heightened Legal Standards for EB1 Extraordinary Ability Petition

Hi William:

I recently received a notice of Request For Evidence (RFE) from USCIS with virtually insurmountable requirements for "the extraordinary ability has been demonstrated by sustained national or international acclaim", and "the achievements have been recognized in the field with extensive documentation", and it also requests many complicate evidence to be submitted again. How could I reply the RFE?


The USCIS approval in the EB1 extraordinary ability (EB1-EA or EB-1A) petition is difficult to obtain. The EB-1A regulation requires that the alien applicant should reach the very top of his or her field. In some instances, U.S. Citizenship and Immigration Services (USCIS) adjudicators may go beyond the high standard that is appropriate for the EB-1A category, and create novel and virtually insurmountable requirements.

The legal standard in the 
EB1 extraordinary ability category is very high. While the EB-1A category was intended to apply to a small group of individuals, it was not meant to be unattainable. The alien applicants should be able to demonstrate their extraordinary abilities in the fields of science, art, education, business, and athletics. It is necessary to establish that the extraordinary ability has been demonstrated by sustained national or international acclaim, and that the achievements have been recognized in the field with extensive documentation.

With the wide discretion the USCIS having in adjudicating of the
EB1 extraordinary ability cases, and the complexity of the evidence presented, USCIS adjudicators sometimes apply heightened legal standards. These are standards which are created by the adjudicator to support a negative decision. In some EB-1A petition cases, it may be difficult to challenge the ineligibility finding made by the USCIS. 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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