1. The Self-Evaluation for EB1 Extraordinary Ability Application
The EB1-Extraordinary Ability immigration category is for persons of extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and who will prospectively be of substantial benefit to the United States. A job offer and Labor Certification are not required for this category. An alien may do some self-evaluation before filing the application:
1) Does my field involve the sciences, arts, education, business, or athletics?
2) Have I received sustained national or international acclaim in the form of either:
- Receipt of a major one-time achievement award (example: Nobel Prize, Pulitzer Prize, Olympic Gold Medal, other major awards)
- OR -
- At least three of the following ten criteria:
- Receipt of lesser nationally/internationally recognized prizes or awards for excellence in your field;
- Membership of associations in your field which requires outstanding achievements as judged by recognized experts in the field;
- Publication in major, recognized media or journals about you and your work in a field;
- Participation as a judge of others in your field;
- Major original contributions to your field;
- Authorship of scholarly articles in your field published in major publications;
- Display of your work in exhibitions or showcases;
- Playing critical role for distinguished organizations;
- Commanded very high salary compared to others in your field;
- Commercial success in the performing arts.
3) Can I provide extensive documentation of these requirements?
4) Am I entering the U.S. to continue working in my area of extraordinary ability?
5) Will my entry into the U.S. substantially benefit the country?
Simply fulfilling three of above ten criteria does not guarantee that an EB-1A application will be approved. The USCIS has made it clear that to show extraordinary ability, the alien applicant must prove him or herself to be at the very top of his or her field. Comprehensive documentation must be provided to substantiate claims to extraordinary ability. The USCIS is very careful to check the forms and sources of documentation, and the extent to which it establishes that the beneficiary is at the very top of the field.
If you can meet these requirements, you may be able to successfully file an EB-1A application. If you do not meet these requirements, the National Interest Waiver category also offers many advantages to bypass the traditional Labor Certification process. Your accomplishments just a little short of "Extraordinary" may appear "Exceptional" as part of your National Interest Waiver application.
2. The EB-1A Criteria Analysis - Alien's Receipt of Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence in the Alien's Field
For this EB1 extraordinary ability criterion, the USCIS adjudicators' main focus is on the alien applicant's receipt of the award, not the employer's receipt of the award. Also, USCIS will determine whether the award itself can meet the requirement of national or international recognition for excellence.
To determine the award nature, other considerations include the number of recipients, and if there are any regional limitations on the recipients. For example, if a provincial award limits competitors in one province, this award may not have national or international significance. The other consideration for nationally or internationally recognized prizes or awards is that awards with national recognition may be reported in the news paper or other media. The media reports may not focus on the alien applicant, but there may be some degree of national recognition of the award.
For some cases, USCIS may believe that scholarships, fellowships and post-doc positions are not the "nationally or internationally prizes or awards for excellence". Generally, these scholarships, fellowships and post-doc positions them self could not establish that the alien applicant has achieved sustained national or international recognition in the field. Therefore, some academic, junior athletic, or music awards would not satisfy this criterion also.
To meet this criterion, the petitioner should establish that the prizes or awards are given for excellence in the beneficiary’s field of endeavor, or that the primary purpose of the prizes or awards was to recognize excellence in the beneficiary’s field. To demonstrate excellence in the field is the basis for the prizes or awards, the petitioner may submit:
Documentary evidence describing how the prizes or awards relates to excellence in the beneficiary’s field.
Documentary evidence of the criteria used to grant the prizes or awards, including evidence that a criterion for winning the prizes or awards was excellence in the field.
3. The EB-1A Criteria Analysis - Alien's Membership in Associations in the Field
To satisfy this EB1 extraordinary ability criterion, the submitted evidence should establish that the alien applicant’s significant achievement in the field is the basis for the alien’s membership in the association. It is not sufficient for this criterion if the membership is based on education level, or is based on years of experience in the field.
To satisfy this criterion, alien applicant's membership in associations should require outstanding achievements of their members, as judged by national or international experts in their fields. Also, USCIS believes that the membership fee payment or an association’s publication subscription is not sufficient for this criterion, because membership in some associations can be a requirement of an occupation, such as union membership or guild affiliation for actors.
Furthermore, a compulsory membership in an association is not indicative of the alien applicant’s achievements in the field. Therefore, for example, a membership in a State Bar, in American Bar Association (ABA), or in American Immigration Lawyers Association (AILA) will not be considered sufficient for this criterion by USCIS. Because lawyers are required to be members of a State Bar, most members of the bar can become ABA members, and most immigration lawyers could be eligible to become AILA member.
To satisfy this criterion, the petitioner should show that the membership of an association is exclusive, which means that membership is limited only to those who have been attained outstanding achievements in the field as judged by their peers. For example, an alien’s membership in the National Academy of Sciences and Engineering would satisfy this criterion, because it is an honorific society, and its membership nominations are based on original research and accomplishment in the field, and and membership is granted based upon recognition of the individual’s distinguished achievements in original research.
Also, to meet this criterion, the petitioner should provide evidence to confirms that the association requires outstanding achievements of its members. To assist the USCIS in determining that the beneficiary’s membership satisfy this criterion, the petitioner may submit the section of the association’s constitution or bylaws which discuss the criteria for membership for the beneficiary’s level of membership in the association.
And, the submitted evidence should show that the basis for granting memberships in the submitted association is the beneficiary’s outstanding achievements in the field of endeavor as judged by recognized national or international experts in the field. To assist in determining that the beneficiary’s membership satisfy this criterion, the petitioner may submit:
- Information to establish that the individual who review prospective member’s applications are recognized as national or international experts in their disciplines or fields.
- The section of the association’s constitution or bylaws which discuss the qualifications required of the reviewers on the review panel of the association.
4. The EB-1A Criteria Analysis - Published Material about the Alien in Professional or Major Trade Publications or Other Major Media
To satisfy this EB1 extraordinary ability criterion, the submitted evidence should include published material in professional or major trade publications, or in major media publications, about the alien applicant's contributions to the field, with the circulation number and the intended audience of the publication. The burden is on the petitioner to establish that a publication is sufficient for the EB1 extraordinary ability criterion.
For regional publications or publications for an ethnic group or language group, USCIS will consider them as sufficient for this criterion only if they are considered the top publications in the field, or the publications have national or international circulation and reputation. Examples of the qualifying regional publications include The Wall Street Journal, the New York Times, and the New England Journal of Medicine.
For the published material, the alien's accomplishments should be the focal point. Generally, it is not persuasive if articles are about the organizations or projects that the alien applicant is involved in, but only mention the alien's name in passing. The submitted evidence should establish the significance of the alien applicant's contributions, and also show that the alien is one of the small percent who have risen to the very top of the field.
Furthermore, any marketing materials for selling the alien applicant’s products or promoting his/her services are not considered by USCIS to be published material about the alien beneficiary. Also, mere citations to an alien’s work, without detailed documentation establishing the alien's extraordinary ability in a field, are not sufficient to satisfy this criterion.
5. The EB-1A Criteria Analysis - Judge of the Work of Others
For EB1 extraordinary ability application, the submitted evidence should establish that the alien has sustained national or international recognition in the field of expertise, therefore the petitioner could indicate the significance of the alien's experience in judging the work of others in the field.
USCIS will determine if the alien applicant has acted as the judge of the work of others in a field of specialization. The petitioner need to show that the alien applicant has not only been invited to judge the work of others, but also actually participated in the judging of the work of others in a field of specialization.
If the petitioner could provide the evidence that the alien applicant has been judging the work of others, the alien's outstanding ability as a judge could satisfy this criterion. For example, peer reviewing for a scholarly journal can meet this criterion, as evidenced by a request from the journal, and accompanied proof that the review was actually completed.
Also, judging the a Ph.D dissertation as an external dissertation committee member in an area of research could be probative of the alien's outstanding ability, in which the committee makes the final judgment as to whether a candidate’s work satisfies the requirements for a doctoral degree, as evidenced by departmental records.
USCIS Service Center often issues the Request for Evidence in EB1 Extraordinary Ability petitions with respect to the criteria of "judging the work of others." USCIS examiners question the alien applicant's work in acting as a reviewer for scientific journals, if the journals at issue were not the highest ranked journals in the field. Under the law, serving as a referee for scholarly, peer reviewed journals meets the "judging the work of others" criteria, even if the journal is not the highest ranked journal.
Normally, USCIS examiners may ask for "documentary evidence for selection of judges in panels/referees in journals." The petitioners should get documents from the editors of the journals. If the alien petitioner was asked to review any articles for the journal, he or she can ask a letter as evidence from the editors or associate editors. Additionally, the editors typically send out review decision letters to reviewers that they influenced the decision or outcome of the review. They may say that the decision to publish or not publish was made based on reviewer's recommendation. Such letters would play an important role for the RFE response also.
6. The EB-1A Criteria Analysis - Alien's Original Scientific, Scholarly, Artistic, Athletic, or Business-Related Contributions of Major Significance in the Field
To satisfy this EB1 extraordinary ability criterion, the petitioner should provide evidence of the alien's "original contributions of major significance" to the field. The arguments alone are not sufficient. Although published work and funded research could be "original contributions” to a field. USCIS will check if the published work and funded research is indeed a major, significant contribution to the field. USCIS will determine whether the alien has made original contributions in the field, and whether the alien’s original contributions are of major significance to the field.
USCIS officers will evaluate whether the alien applicant's work constitutes major, significant contributions to the field. Although funded research and published work may be “original,” this fact alone is not sufficient to establish that the alien applicant's work has "major significance." For example, peer-reviewed presentations or peer-reviewed articles in scholarly journals may have significance of the alien’s contributions to a field, if the presentations or articles have provoked widespread commentary or received a goodly number citations.
To assist the USCIS' assessment of the alien’s original contributions in a field, USCIS officers will also consider the reference letters from experts in the fields regarding the significance of the alien’s contributions. But only reference letters that specifically indicate the alien applicant’s contributions of major significance to the field and its impact on subsequent work could add value for the EB-1A petition. The reference letters that lack specifics do not add value, and will not be considered to be probative evidence by USCIS.
To meet this criterion, the submitted evidence should show that the beneficiary’s contributions are considered to be of major significance in the field of endeavor. To assist in determining whether the beneficiary’s contributions are original and of major significance in the field, the petitioner may submit:
- Objective documentary evidence of the significance of the beneficiary’s contribution to the field.
- Documentary evidence that people throughout the field currently consider the beneficiary’s work important.
- Testimony and/or support letters from experts which discuss the beneficiary’s contribution of major significance.
- Evidence that the beneficiary’s major significant contribution has provoked widespread public commentary in the field, or has been widely cited.
- Evidence of the beneficiary’s work being implemented by others.
Also, the reference letters and testimonies, if submitted, must provide a much detail as possible about the beneficiary’s contribution, and must explain, in detail, how the contribution was “original” (not merely replicating the work of others), and how they are of “major” significance. General statements regarding the importance of the endeavors are insufficient.
7. The EB-1A Criteria Analysis - Alien's Authorship of Scholarly Articles in the Field
To satisfy this EB1 extraordinary ability criterion, the petitioner should submit evidence of the alien applicant’s academic articles in professional or major trade publications. The provided evidence should establish the significance of the published articles, and how it has set the alien applicant apart, as one of the small percent who has risen to the very top of the field.
The persuasive evidence includes the documentation that shows the independent experts in the field consider the published documents to be significant, or that the alien’s research results have been widely cited, or been widely adopted by other researchers or professionals. In the cases for scientists, this EB-1A criterion could be satisfied by conference presentations, if such evidence is indicative of the requisite sustained national or international acclaim.
As an example, peer-reviewed presentations at national or international conference, or peer-reviewed publications in academic journals that have received acclaim from other researchers or professionals in the field, may satisfy this EB-1A criterion. But an alien's poster or abstract presentation at an symposium that got little or no commentary from others in the field would have little or no value.
Furthermore, an alien applicant’s work, product, or publication of material in professional or trade publications for the employer or clients as part of the alien’s employment will not normally be considered to be significant to satisfy this EB-1A criterion, unless there are corroborative and independent documentary evidence.
For articles published in foreign languages, an English translation should be accompanied to demonstrate that the alien applicant authored the article. In many cases, USCIS will not require a complete translations to evaluate the quality of the published material, since they understand that a full English translations of published material can be burdensome to obtain in some cases.
8. The EB-1A Criteria Analysis - Display of the Alien's Work in the Field at Artistic Exhibitions or Showcases
To meet this EB-1A criterion, the only fact that the alien applicant had exhibited his/her work does not necessarily establish the alien's extraordinary ability in the field. The alien applicant’s exhibition or showcase should have significance to show the sustained national or international acclaim in the field of expertise, and the submitted evidence should demonstrate the exhibition or showcase is "distinction."
USCIS will determine whether the work that was displayed is the alien applicant’s work product. USCIS will also determine whether the displayed venues were artistic exhibitions or showcases. Here the showcase is defined as setting, occasion, or exhibiting something in an attractive or favorable aspect.
9. The EB-1A Criteria Analysis - Performance in a Critical or Leading Role for Organizations or Establishments Having a Distinguished Reputation
To meet this criterion, the submitted evidence should indicate that the alien applicant has performed in a leading or critical role in a distinguished organization or establishments. In other words, the provided evidence should establish that the alien applicant has played not just a supporting role, but the organization itself should have a distinguished reputation, or has hosted distinguished productions previously.
For the EB1 Extraordinary Ability criterion of "leading or critical role in distinguished organizations", it is best to separate this criterion into its two separate components:
1) Identify any organizations with which you are associated - Are they famous organizations? Can you provide evidence of the work they do and their mission? Does there website describe their annual revenue, past achievements or highly reputable members/employees? Collect evidence that could help prove that the organization has a "distinguished" reputation.
2) Identify your role with these organizations - Do you have a leadership role in the organizations? What is your title for the organizations? Even if you do not have a leading role, are you critical to the organization's success? Do you provide expert advice? Do you raise funds?
To evaluate the submitted evidence, USCIS will examine the alien's position in the organization, and then determine if the alien's job is a leading or critical position, and USCIS will also determine if the organization itself is distinguished organization or establishment. Furthermore, USCIS will evaluate the alien's position to see if the alien's role was leading or critical to the entire organization, not just to a department within the organization or establishment.
If provided documentation about the organization does not specifically refer to the alien's contributions, that kind of documentation goes to the reputation of the organization itself. Therefore, it is not persuasive evidence of the alien's significance of the role played in the organization.
10. The EB-1A Criteria Analysis - Alien Has Commanded a High Salary or Other Significantly High Remuneration for Services
To satisfy this EB1 extraordinary ability criterion, the petitioner should show that the alien applicant has a significantly high salary or remuneration for his or her services, in relation to others in the same or similar field. For example, if submitted evidence shows that the alien has a significantly higher salary than others at the alien applicant's workplace, it may not be sufficient to establish the alien's outstanding role in the field, if without further and objective additional evidence.
Also, the submission of U.S. Department of Labor's prevailing wage determination or information for the alien's field may not meet this criterion, if without other corroborative evidence. Because the alien applicant must show that his or her salary or other remuneration is "significantly" higher than that of others in the field, not just simply higher that the "prevailing wage."
The prevailing wage information from U.S. Department of Labor should be accompanied by supporting documentation explaining why the petitioner believes the alien applicant's salary is significantly higher than that of others in the same field. If an alien applicant works in a foreign country, the wage statistics evidence should be based on that country, and not simply converting the salary to U.S. dollars and then be considered high in U.S.
11. The EB-1A Criteria Analysis - Commercial Success in the Performing Arts, as Shown by Box Office Receipts or Record, Cassette, Compact Disk, or Video Sales
This EB1 extraordinary ability criterion focuses on the sales volume or sales receipts from the box office. Thus, it is not sufficient to establish an alien's eligibility for this criterion if it depends only on the mere fact that an alien has released musical compilations, performed in theatrical productions, or made motion picture or television productions.
USCIS will determine if the alien applicant has the commercial successes in the performing arts, and USCIS will focus on sales volume or box office receipts as a measure of the alien applicant’s commercial success, relative to others involved in similar pursuits in the performing arts.
12. The EB-1A Criteria Analysis - Comparable Evidence
If the standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. The EB1 extraordinary ability provision allows petitioners to submit "comparable evidence" to establish an alien applicant's eligibility, if the above 10 EB-1A criteria do not apply to the alien’s situation or occupation.
To use the comparable evidence, the petitioner should explain why the alien applicant cannot satisfy at least 3 of the 10 EB-1A criteria, and why the submitted evidence is comparable to that required in the EB1 extraordinary ability regulations. In some situations, one type of comparable evidence may satisfy more than one EB-1A criteria. But there is no comparable evidence for the one-time achievement of a major, international recognized award.
When USCIS evaluates the submitted comparable evidence for EB1 extraordinary ability application, they will consider if the EB-1A criteria are applicable to the alien’s occupation or situation. If not, USCIS will determine whether the provided evidence is indeed comparable to the 10 criteria listed in the EB-1A regulations.
13. EB1 Extraordinary Ability Immigrant Classification - Establishing Eligibility for the High Level of Expertise
Meeting the minimum regularly criteria outlined above alone will not establish eligibility for the EB1 Extraordinary Ability immigrant classification. Any evidence submitted should also articulate how the evidence establishes that the beneficiary possesses the required high level of expertise for the EB1 Extraordinary Ability immigrant classification.
Establishing eligibility for the high level of expertise required for the EB1 Extraordinary Ability immigrant classification is based on the beneficiary possessing:
Sustained national or international acclaim: In determining whether the beneficiary has enjoyed “sustained” national or international acclaim, such acclaim must be maintained. A beneficiary may have achieved extraordinary ability in the past, but then failed to maintain a comparable level of acclaim thereafter; and
Achievements that have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who has risen to the very top of the field of endeavor.
When ultimately making a final decision regarding EB-1A eligibility, USCIS will first evaluate the evidence submitted by the petitioner to determine which regulatory criteria the beneficiary meets in Part One of the Two-Part analysis. If the petitioner establishes that the beneficiary has received a one time achievement (a major internationally recognized award), or meets at least three of the ten criteria, then USCIS will evaluate all of he evidence in the record to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the a preponderance has sustained national or international acclaim, and that the beneficiary ‘s achievements have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who risen to the very top of the field of endeavor.
This is the petitioner’s responsibility to meet the legal burden of proof to establish eligibility in all respects. Whenever a alien applicant makes an application for an immigrant benefit, the petitioner shall bear the burden of proof to establish eligibility for the benefit sought. Therefore, the petitioner must prove, by the preponderance of the evidence, that the beneficiary is fully qualified for the benefit sought.
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