The Two-Part Evaluation Process for EB1 Extraordinary Ability Petition
1. The Policy of "Two-Part Evaluation" for EB1 Process
U.S. Congress and U.S. Citizenship and Immigration Services (USCIS) have set a high standard for individuals seeking immigrant visa as aliens of extraordinary ability (EB1 Extraordinary Ability or EB-1A). To qualify for this immigrant classification, an alien should demonstrate sustained national or international acclaim, and the alien's achievements have been recognized in the field of expertise. Therefore, the immigrant classification for aliens of extraordinary ability is reserved for the small percentage of individuals at the very top of their fields.
For EB1 Extraordinary Ability application, the petitioner needs to provide initial evidence that the alien applicant has achieved the required acclaim and recognition in his or her field of expertise, and submitted evidence can be either a one-time internationally recognized achievement, or at least 3 out of the 10 other types of evidence listed in the regulation, such as scholarly articles, high salary, or commercial successes.
U.S. Ninth Circuit court has reviewed an USCIS Administrative Appeals Office’s (AAO) dismissal of a petitioner’s appeal of a denial of an immigrant petition filed under EB1 Extraordinary Ability (Kazarian v. USCIS, 2010). The U.S. Ninth Circuit court concluded that USCIS' concerns about the significance of the submitted evidence should be raised in a “final merits determination”, to determine whether the alien applicant has the requisite extraordinary ability.
Thereafter, USCIS has agreed with the U.S. Ninth Circuit court’s two-part adjudicative approach to evaluate the evidence submitted for EB1 extraordinary ability petitions:
1) determine if the petitioner has submitted the required evidence to meet the criteria for EB1 extraordinary ability;
2) during a "final merits determination", determine if the the submitted evidence is sufficient to demonstrate that the alien beneficiary could meet the required high level of expertise for the EB1 extraordinary ability.
3) In other words, USCIS officers should not evaluate each type of evidence individually to determine if the alien applicant is extraordinary.
2. The Two-Part Adjudicative Approach for EB-1A, EB-1B and NIW
USCIS adjudicators will use a Two-Part Evaluation process to evaluate the submitted evidence. First, USCIS adjudicators will evaluate the submitted evidence to determine which evidence meets the regulatory criteria, by a preponderance of the evidence. Second, USCIS adjudicators will evaluate the submitted evidence together, for the final merits determination regarding the high level of expertise requirement for the EB-1A immigrant visa category.
The two-part adjudicative method to evaluate the submitted evidence will simplify the process by eliminating piecemeal consideration of the alien's extraordinary ability, and shift the overall analysis of the alien extraordinary ability to the end of the adjudicative process, which is the final merits determination.
Thus, with the two-part adjudicative approach, the initial evidence evaluation will not change. But the determination of an alien applicant's extraordinary ability will occur in the adjudicative process, which will indicate how submitted evidence should be considered, the overall determination of eligibility, and better decision consistency for alien's extraordinary ability. This approach will also be applied for the evidence evaluation for EB1 Outstanding Professors or Researchers petition (EB-1B), and also for EB2 aliens of exceptional ability for National Interest Waiver petition (NIW).
USCIS has issued a Policy Memorandum to provides guidance regarding the analysis that Immigration Service Officers (ISOs) must use in adjudicating Form I-140, Immigrant Application 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 applications 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 applications filed for EB1-Aliens of Extraordinary Ability. In general, the application must be accompanied by initial evidence that:
a) the alien has sustained national or international acclaim; and
b) the achievements of an alien applicant have been recognized in the field of expertise.
At the first stage, USCIS officers will evaluate the submitted evidence to determine which evidence objectively meets the the regulatory criteria, by applying the preponderance of the evidence standard. At the second stage, USCIS officers will evaluate the evidence in its entirety for the final merits determination, regarding the required high level of expertise for the EB1 Extraordinary Ability.
In Part One, the USCIS adjudicator will determine whether the immigrant visa petition has submitted evidence to meet the criteria for the immigration classification he or she is seeking, as required by the USCIS regulations. The Part One is limited to determine whether the submitted evidence is comprised of at least 3 of the 10 EB-1A regulatory criteria, by applying a preponderance of the evidence standard. In Part One analysis, USCIS adjudicators will consider the quality of the submitted evidence objectively to determine if a particular regulatory criterion has been met. USCIS adjudicators will not make a determination for the alien beneficiary’s claimed extraordinary ability and international recognition.
In Part Two, the USCIS adjudicator will consider all of the submitted evidence in totality to make a determination as to whether the alien beneficiary meets the requisite level of expertise for the immigration category. In this step, the USCIS adjudicator will evaluate all the evidence and determine if it proves by a preponderance of the evidence cumulatively that the alien beneficiary satisfies the general definition of the category.
3. Extraordinary Ability Application Process - the "Two-Part Evaluation" for EB1 Aliens of Extraordinary Ability
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. USCIS adjudicator must use a two-part analysis to determine eligibility First, the adjudicator must determine if the applicant has, by a preponderance of the evidence, met at least three of the criteria, and then the adjudicator 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, USCIS adjudicator must determine whether the application 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 application 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 performance of the alien applicant 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, USCIS adjudicator will consider all of the evidence to make a final merit determination of whether or not the applicant, 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.
4. The “Preponderance of the Evidence” Standard of Proof
To keep the consistency in immigrant visa adjudication, USCIS will use two-part approach for evaluating submitted evidence for EB1 Extraordinary Ability, EB2 Outstanding Professors or Researchers, and EB2 National Interest Waiver petition.
The adjudicative officers will first evaluate each type of submitted evidence objectively to determine if it meets the regulatory criteria. The adjudicative officers then will consider all evidence in totality to make the final merits determination, for the required high level of expertise in that immigrant visa classification.
For immigrant petitions filed for EB1 Extraordinary Ability, EB1 Outstanding Professors or Researchers, and EB2 National Interest Waiver, USCIS will use the “preponderance of the evidence” standard, which means that if the petitioner submits relevant and credible evidence that leads USCIS to believe that the claim is “more likely than not” or “probably true,” then the petitioner has satisfied the standard of proof.
For example, if a petitioner provides evidence that is probative and credible, not merely recite the regulations, including publications, expert reference letters, employer support letters, then USCIS officers should evaluate the evidence objectively to determine whether or not it is acceptable, by applying the preponderance of the evidence standard.
Therefore, USCIS officers should not impose novel requirements beyond those set in the regulations already, but should evaluate the submitted evidence to determine if it is in the regulations applicable to the type of evidence by a preponderance of the evidence standard. Then, USCIS officers should evaluate the evidence all together, when considering the petition case in its entirety to determine if the beneficiary has the required high level of expertise for the immigrant classification.
5. The Final Merits Determination for USCIS to Evaluate an EB-1A Petition
The U.S. Court of Appeals for the Ninth Circuit issued a decision for Mr. Kazarian's EB1 Extraordinary Ability (EB-1A) petition, concluding that USCIS should reserve any evaluation of the record evidence that otherwise meets the plain language requirements of the regulatory criteria for a separate and subsequent "final merits determination."
The two-step review articulated in Kazarian case provides a reasonable interpretation and application of the existing regulatory standard. To promote consistency, USCIS has adopted the two-step review process for cases arising both within and outside the jurisdiction of the Ninth Circuit.
Thus, the proper procedure for evaluating an EB1 Extraordinary Ability visa petition is twofold. First, USCIS will analyze the record and count the number of evidentiary criteria met, without imposing novel substantive or evidentiary requirements beyond those set forth by regulation. Second, if the petitioner submits evidence that meets at least three of the criteria, USCIS will then review the record in its totality in a final merits determination to determine if the alien is one of that small percentage of individuals who have risen to the very top of their field, has sustained national or international acclaim, and that his or her achievements have been recognized by others in the field of expertise.
At the second step, USCIS will consider not only the quantum of evidence, but also its quality, including relevance, probative value, and credibility. If the record establishes that it is more likely than not that the individual has sustained national or international acclaim and recognition in the field of expertise, and is one of that small percentage who has risen to the very top of their field of endeavor, then the petitioner has met his or her burden of proof.
6. Part One - Evaluate Whether the Evidence Provided Meets any of the Regulatory Criteria.
In general, the EB1 Extraordinary Ability 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.
This 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 types of evidence listed in EB1 Extraordinary Ability criteria. USCIS officers should use a two-part approach to evaluate the submitted evidence to determine the eligibility for EB1 Extraordinary Ability.
In Part One, the determination is limited to decide whether the submitted evidence includes either a one-time achievement - a major and internationally recognized award, or at least three of the ten regulatory criteria, by applying a preponderance of the evidence standard, and also considering the quality of the evidence to determine whether a particular regulatory criterion has been met. But in Part One of the EB-1A case analysis, USCIS officers will not make a determination regarding whether or not the alien applicant is one of that small percentage who have risen to the very top of the field, or if the alien applicant has sustained national or international acclaim.
The determination in Part One of the analysis is limited to determining whether the evidence submitted satisfies the preponderance of the evidence standard and meets at least 3 criteria. While USCIS adjudicator must consider the quality and caliber of the evidence to determine whether a particular regulatory criterion has been met, the USCIS adjudicator will not make a determination relative to the alien’s claimed extraordinary ability and national/international recognition in Part One of the case analysis. Meeting the minimum requirement by providing at least 3 types of evidence does not, in itself, establish that the alien in fact meets the requirements for classification as an Alien of Extraordinary Ability.
The following is the USCIS' description of Part One evaluation:
"We determine whether the petitioner has submitted evidence to show that the beneficiary has received a one-time achievement (a major international recognized award); or the beneficiary qualifies under at least three of the ten criteria required for this classification."
7. Part Two - Final Merits Determination
In Part One, the USCIS adjudicator will only determine if the submitted evidence could objectively meets the EB-1A criteria. But in Part Two analysis, whether the alien beneficiary has sustained national or international acclaim will be articulated.
For EB1 extraordinary ability immigrant application, meeting the minimum requirement of initial evidence does not establish that the alien meets the requirements of extraordinary ability. For final merits determination, the evidence's quality will be considered. For example, whether the judging responsibilities were internal, or whether the scholarly articles are cited by others in the field.
In the Part Two analysis, USCIS officers will evaluate the submitted evidence together to make a final merits determination of whether the alien applicant has sustained national or international acclaim, whether the achievements have been recognized in the field, and whether the alien is one of the small percentage who has risen to the very top of the field.
If the USCIS officer believes that the petitioner has failed to demonstrate the EB-1A requirements, the USCIS officer will articulate the specific reasons as to why the petitioner has not demonstrated that the alien applicant is an alien of extraordinary ability.
Meeting the regulatory criteria of EB-1A in Part One alone does not establish that the alien applicant indeed meets the requirements as an Alien of Extraordinary Ability. In part one, USCIS officer will only determine if the evidence objectively meets the regulatory criteria. The issue related to if the alien applicant is one of that small percentage who have risen to the very top of the field, and also enjoys sustained national or international acclaim should be determined in Part Two of the analysis,
For example, USCIS may consider the following situations:
1) The judging of the work of others in the same field of specialization should satisfy the EB-1A criteria in Part One. But for Part Two consideration, the alien’s participation of judging of the work of others should be evaluated to determine if it was indicative of the alien applicant being one of that small percentage who have risen to the very top of the field, and also enjoying a sustained national or international acclaim.
2) The article publications in professional or major trade publications should satisfy the EB-1A criteria in Part One. But for Part Two consideration, the alien applicant’s publications should be evaluated to determine if they were indicative of the alien being one of that small percentage who have risen to the very top of the field, and also enjoying sustained national or international acclaim.
In Part Two analysis for each EB-1A application case, USCIS adjudicators will evaluate the evidence together to make a final merits determination of whether or not the alien applicant has demonstrated that the alien beneficiary meets the requirements as an alien of extraordinary ability. If the USCIS adjudicator determines that the alien beneficiary has not met the EB-1A requirements, the USCIS adjudicator will articulate the specific reasons as to why the petitioner has not demonstrated that the alien beneficiary is not an alien of extraordinary ability.
The following is the USCIS' description of Part Two evaluation:
"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, we then determine whether the petitioner has submitted evidence demonstrating that the beneficiary:
1) has sustained national or international acclaim, and
2) has achievement 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.
In determine 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."
Therefore, you should set up your EB1-Extraordinary Ability petition in two parts. Part One should be reserved for a discussion of the submitted evidence under the EB1-Extraordinary Ability regulatory criteria; Part Two should be reserved for a review of your evidence “in its entirety”.
Part Two is where it might be helpful to put in anything that would not be considered sufficient to prove a specific EB-1A criterion, but “in total” show up your achievements to the best advantage. For example, even through travel awards are generally not considered major prizes, the fact that you won several of those awards to attend major conferences gives a full and more accurate picture of your accomplishments.
8. The Complete Do-It-Yourself Package for EB1 Extraordinary Ability Application
To help you obtain U.S. Green Card easily and quickly, we provide the high quality and case-proven Complete Do-It-Yourself Package for EB1 Extraordinary Ability Application, based on our extensive and practical employment immigration experience.
As added value in the Complete Do-It-Yourself Package for EB1 Extraordinary Ability Application, we provide comprehensive instructions on U.S. immigration application requirements and processing, the methods of how to prepare the EB-1A application, how to collect evidence, how to show your achievements, how to prove your extraordinary ability, and how to write the application cover letter and the reference letters.
9. Request for Evidence (RFE) Notice, and Responding to an Request for Evidence
When USCIS (U.S. Citizenship and Immigration Services) needs more information to proceed an immigration application, it will issue the petitioner a Request for Evidence (RFE) notice. The petitioner should respond to the RFE within the timeframe indicated in the RFE notice, usually 30 to 90 days, so that the USCIS immigration official adjudicating the immigration case will have enough evidence to make a decision.
If you receive an RFE notice from USCIS, you should not panic. It does not mean that the denial of your application is inevitable, it only mean that USCIS needs more information from the petitioner, in order to make a right decision. USCIS also has the power to deny an immigration application without first issuing Request for Evidence, so the petitioner should be thankful for the opportunity to correct information, provide more documentation and evidence, and convince the USCIS immigration official to approve your immigration petition.
The petitioner should return the RFE response before the deadline given by USCIS. If you fail to respond the RFE notice, USCIS will either determine that you abandoned your immigration application and issue a denial, or it will make an ultimate decision on the case without the information that it requested, most likely resulting in a denial.
Therefore, it is important that you change your address with USCIS if you move, or make arrangements for your mail to be forwarded to you if you travel extensively. If USCIS sends you a RFE, you don’t want to miss it.
10. The Request For Evidence for EB1 Extraordinary Ability Petition, and Notice of Intent to Deny from USCIS
An USCIS adjudicator may issue a Request For Evidence (RFE) on EB-1A cases that were clearly not approvable. The issuance of RFEs in these cases resulted in delays in the processing time. On the other hand, many cases could be approved if the applicants had been given the opportunity to provide additional information in response to the RFEs.
To process the Form I-140 petition and determine the eligibility for EB1 Extraordinary Ability petition, additional information may be required by USCIS. The Request For Evidence notice provides suggested evidence that could be submitted in consideration of each requested item. The petitioner should provide additional evidence that is believed to satisfy the request. The petitioner is responsible for providing that best shows that the EB-1A beneficiary meets all requirements. Evidence must show that the beneficiary was eligible for the requested benefit when the Form I-140 petition was filed.
A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.
To help you replying the RFE, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence for EB1 Extraordinary Ability Petition". In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, sample reference letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of EB-1A petition, and eventually get your Green Card.
An EB-1A application case may be denied if it is clearly not approvable. These are cases where basic regulatory requirements are missing. This includes cases where an applicant is categorically ineligible to receive an immigration benefit. USCIS also recognized that sometimes the adjudicators request full range of information when only a small amount is needed to make a final decision, so it wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.
A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.
If your EB-1A petition is denied by USCIS, you can file an EB-1A petition again, or file in other categories. The immigration law does not restrict the time you can file an EB-1A petition again after the rejection of your previous EB-1A application. A previous rejected EB-1A petition does not bar you from submitting another EB-1A petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.
11. The Motion to Reopen or Motion to Reconsider after Form I-140 Immigrant Visa Application Denial
Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.
If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:12. Date For Filing vs. Final Action Date, the Two-Tiered Visa Bulletin
* The requested evidence was not material;
* The required initial evidence was submitted with the petition;
* The request for appearance or additional evidence was complied with during the allotted period, or
* The request for evidence or appearance was not sent to the address of record.
As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration.
A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.” Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.
To provide those who are stuck in immigrant visa quota backlog with the benefits of a pending adjustment, and to reduce waiting time where possible, U.S. Department of State’s monthly visa bulletin provides "Date For Filing" and "Final Action Date"
Previously, the monthly visa bulletin has served to update one date for each category of permanent residence applicant - the priority date cutoff. This one date determined whether you were eligible to submit your permanent residence application, and whether it was expected that there would be a visa number available, allowing your application to be approved.
Now, the “Date for Filing” determines whether or not you can submit the final immigrant visa application, and the “Final Action Date” indicates whether or not it is expected that an immigrant visa number will be available.
In many cases, the Date for Filing will be well before the Final Action Date, meaning that the alien applicants will be eligible to submit an application for permanent residence well before it is even possible for the government to approve that application.
Therefore, those stuck in a backlog can get benefits of a pending adjustment - apply for a combined EAD/AP card, which provides employment and travel authorization. Immigrants holding an EAD can work for any U.S. employer, which provides significantly more security and flexibility than the employer-specific H-1B petitions that serve as the basis for many immigrant’s employment authorization. For family-based applicants, the EAD may be their first-ever work authorization in the U.S., so getting that earlier is a great benefit.
Also, earlier filing of the final application means that employment-based permanent residence applicants will be eligible for AC21 portability earlier, meaning they can change employers, under certain circumstances, without being forced to re-start their permanent residence application from the beginning.
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