1. USCIS' Policy of "Two-Part Evaluation" for Form I-140 Petitions

On August 18, 2010, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum to provides guidance regarding the analysis that Immigration Service Officers (ISOs) must use in adjudicating Form I-140, Immigrant Petition for Alien Worker, filed for:

• EB1-Extraordinary Ability;
• EB1-Outstanding Professors or Researchers; and;
• EB2-Aliens of Exceptional Ability, including EB2 National Interest Waiver (NIW).

The purpose of the Policy Memorandum is to ensure that U.S. Citizenship and Immigration Services (USCIS) processes Form I-140 petitions filed under these employment-based immigrant classifications with a consistent standard. USCIS Immigration Service Officers (ISOs) will follow the amended procedures in the adjudication of all Form I-140 petitions filed for EB1-Aliens of Extraordinary Ability. In general, the petition must be accompanied by initial evidence that:

a) the alien has sustained national or international acclaim; and 

b) the alien’s achievements have been recognized in the field of expertise. 

2. The Requirement of Sustained National or International Acclaim

A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that the alien's achievements have been recognized in the field of expertise. In determining whether the beneficiary has enjoyed “sustained" national or international acclaim, such acclaim must be maintained. The definition of sustain is "to support or maintain, especially over a long period of time, and to persist in making an effort over a long period of time."

However, the word sustained does not imply an age limit on the beneficiary. A beneficiary may be very young in his or her career and still be able to show sustained acclaim. There is also no definitive time frame on what constitutes “sustained.” If an alien was recognized for a particular achievement, ISOs must determine whether the alien continues to maintain a comparable level of acclaim in the field of expertise since the alien was originally afforded that recognition. An alien may have achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim thereafter.

3. The "Two-Part Evaluation" for EB1-Aliens of Extraordinary Ability Petition

The initial evidence must include either evidence of a one-time achievement (i.e., a major international recognized award, such as the Nobel Prize), or at least three of the ten types of evidence. ISOs must use a two-part analysis to determine eligibility First, the ISO must determine if the petitioner has, by a preponderance of the evidence, met at least three of the criteria, and then the ISO should consider all of the evidence in totality in making the final merits determination.

To evaluate whether the evidence provided meets at least three criteria, ISOs must determine whether the petition is supported by evidence of a one-time achievement (that is, a major, internationally recognized award). If it is not, then they must make a determination that is limited to whether the evidence submitted in the petition meets at least three criteria as discussed above.

Meeting the minimum requirement of providing evidence relating to at least three criteria does not, in itself, establish that the alien in fact meets the requirements for classification as an Alien of Extraordinary Ability. In making this determination, the quality of the evidence, such as whether the judging responsibilities were internal and whether the scholarly articles (if pertinent to the occupation) are cited, is an appropriate consideration in the final merits determination. 

In addition, the alien’s performance at the so-called major-league level does not automatically establish that he or she meets the extraordinary ability standards. Also, U.S. Congress intended that in the absence of a one-time achievement, an alien could qualify for the classification based on a “career of acclaimed work.”

In Part Two of the analysis in each case, ISOs will consider all of the evidence to make a final merit determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has:

1) 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.” and

2) Sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.

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