1.
The Request For Evidence for an EB1-Extraordinary Ability Petition
After
reviewing an EB1-Extraordinary Ability (EB1-EA or EB1A) petition, if USCIS needs additional evidence, they will send out Request For
Evidence (RFE) with some explanation of
the deficiencies for the evidence already submitted. In the RFE notice, USCIS will
normally give
the petitioner guidance in overcoming the deficiencies to establish the alien's extraordinary
ability.
USCIS
will normally not deny a petition if a particular type of evidence is not there. For
example, people may think that if an alien is extraordinary, there should be
published articles about the alien and his or her work. However, USCIS
adjudicator cannot deny a EB1-EA petition because no published articles were submitted,
if evidence meeting three qualifying criteria has been submitted that
demonstrates the alien is in fact extraordinary.
Many people who qualify for
O-1 non-immigrant visas as alien of extraordinary ability do not automatically qualify for the
EB1-EA immigrant petition,
even though the standards are similar. For a
successful response to a Request for Evidence in EB1-EA petition, the petitioner
should prepare a RFE response according to the
EB1-EA statutory and regulatory guidelines.
Certain
evidence submitted in RFE response may overlap with two or more of the ten
criteria set forth for EB1-Extraordinary Ability petition. The USCIS adjudicator will evaluate the quality of the
evidence submitted on a case-by-case basis to determine whether the evidence
submitted for RFE response satisfies the
criteria required to establish
eligibility for EB1-EA classification.
In
the RFE response, petitioners may also submit “comparable
evidence” to establish an alien beneficiary’s eligibility in cases where the
standards set forth by USCIS do not apply. In cases where such comparable
evidence is submitted, it is reasonable to require the petitioner to explain why
the standards set forth by USCIS do not apply.
2. USCIS' Policy of "Two-Part Evaluation" for EB1-Extraordinary Ability Petition and RFE Notice
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. 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.
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 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. If such evidence is not exist in the initial filing, an RFE notice will be issued by USCIS Service Center to the petitioner.
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 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.
Again, if such evidence is not exist in the initial filing to prove that the alien beneficiary is
"one of that small percentage who have risen to the very top of the field of endeavor" and
"sustained national or international acclaim and that his or her achievements have been recognized in the field of
expertise," an RFE notice will be issued by USCIS Service Center to the petitioner.
3.
Preparing a Successful RFE Response for
EB1-Extraordinary Ability Petition
The
petitioner should ensure that the alien beneficiary meets at least three of the required
ten EB1-EA criteria. Although meeting three of the
ten criteria would not guarantee that the alien will qualify as an alien of extraordinary ability in the arts, sciences, education, business or
athletics. But if
the alien can not satisfy at least three of the ten criteria, it may be wise to consider another
immigrant category, such as EB1-Outstanding Researcher or Professor,
or EB2-National Interest Waiver.
The alien of extraordinary ability is
the one who belongs to that
"small percentage", and who has "risen to the very top of the field of
endeavor". Therefore, the petitioner should clearly document evidence
in the RFE response that the alien beneficiary qualifies for each
EB1-EA criterion. For example:
1)
If the alien has published in national or international journals, the
petitioner should provide copies of the published papers and circulation information proving that the journal is
national or internationally published;
2)
Provide citation search report for the published articles;
3)
Provide additional independent reference letters from experts in the field;
4)
If the alien has received an award, show proof of the receipt of the award, and then show the criteria for the award
and why it is important in the field;
5)
If the alien is highly paid, show that he or she is paid more than the weighted average,
with copies of salary surveys for that particular position.
To
reply the RFE requests, the petitioner should make sure to include
additional reference letters from experts in the field who have not collaborated directly
with the alien beneficiary. However, it undermines the reputation when the peer reference
did not previously know the alien beneficiary, but is writing the letter simply
after reviewing a resume and publications. Therefore, a combination of
additional reference letters from experts and collaborators who describe the
beneficiary’s reputation in the field, along with a few other letters from
independent references who know the beneficiary’s work via their conference
presentations or publications, is the best recipe for a RFE success.
4.
An Often Raised Question in RFEs - Authorship of Scholarly Articles in
the Field
To
satisfy EB1-EA regulation, the petitioner may present evidence of the alien’s
authorship of scholarly articles in the field, in professional or major trade
publications or other major media. The evidence should establish the
significance or value of the published material, and how it has set the alien beneficiary
apart as one of the small percent who has risen to the top of his or her field.
The
most persuasive evidence in this regard is the documentation that shows that independent experts or organizations in the field
consider the published material to be significant or that the alien beneficiary’s
findings or methodologies have been widely cited or adopted by the industry or
professional community at large. For example, peer-reviewed presentations at
academic symposia or peer-reviewed articles in scholarly journals that have
provoked widespread commentary, or received acclaim from others working in
the field of endeavor, might satisfy this criterion.
Likewise,
the alien’s internal work product that was created for his or her employer or
its clients as part of the scope of the alien’s employment is not generally
considered to be significant for purposes of satisfying EB1-EA regulation, which
requires publication of material in professional or trade publications or major
media, unless shown otherwise through corroborative, independent documentary
evidence.
In
some cases, this criterion might be
satisfied by a showing of national or international conference presentations, provided such evidence is
indicative of the requisite sustained national or international acclaim.
5.
Other Questions often Raised in RFEs
1)
Sustained national or
international acclaim: in adjudicating a petition seeking to have a
person classified as an alien of extraordinary ability, USCIS looks at the
quality, rather than the mere quantity of the evidence. In making a
determination, meeting the minimum evidentiary requirement will not
automatically establish eligibility. In all cases, the evidence must be
evaluated to determine if it in fact establishes that the alien is extraordinary
by demonstrating that he or she has garnered sustained national or international
acclaim in the field of endeavor.
2)
One of that small percentage
who have risen to the very top of the field of endeavor:
whether
or not a petition is approvable will depend on the specific facts presented. The
evidence provided in support of the RFE needs not specifically use the word
"extraordinary." Rather the material should be such that it is readily
apparent that the alien's contributions to the field are qualifying. The
submission of voluminous documentation may not contain sufficient persuasive
evidence to establish the alien beneficiary’s eligibility. The evidence
provided in support of the Request for Evidence must establish that the alien beneficiary "is
one of that small percentage who have risen to the very top of the field of
endeavor."
3)
The alien's overall impression should be extraordinary: an alien may be
stronger in one particular evidentiary area than in others; however, the overall
impression should be that he or she is extraordinary. Approval or denial of a
petition should be based on the type and quality of evidence that is submitted.
Also, the alien beneficiary must intend to continue in the area of his or
her expertise.
4) Self-Petitioners and continuing
work in the field of extraordinary ability: An
form I-140 petition filed on behalf of an alien with extraordinary ability does not
need to be supported by a job offer; therefore, the alien may
“self-petition” for the classification. However, in the RFE response, the
alien must demonstrate that he or she intends to continue work in the field of extraordinary ability, and the alien’s work will substantially
benefit the United States prospectively. There is no standard rule as to what
will substantially benefit the United States. In all cases, however, the alien must show that he or she intends to continue work in the area of
expertise.
5)
Judging the work of others: simply reviewing papers is not enough to meet judging the work of
others. An alien beneficiary must have been specifically requested by the journal to do so, and not passed down by
others.
6)
Collaborative research projects: additional evidence should corroborate
the alien's individual role in any collaborative research projects in order to ascertain what degree of credit can be reasonably attributed to
the alien beneficiary relative to his or her colleagues. The alien beneficiary may need to get a letter from
ex-advisers and collaborators
to say that he or she has done major work of the projects.
7)
Articles in foreign language: articles
that were published in foreign language journals should be accompanied by an
English translation sufficient to demonstrate that the alien beneficiary
authored the piece. Obtaining full English translations of published material
can be burdensome, thus USCIS will not request complete translations unless
absolutely necessary to evaluate to quality of the material. In many cases, such
an evaluation of the material can be sufficiently conducted without a complete
translation. The evidence should also show the date that the article was
published and the circulation and readership of the journal.
6.
The Comparable Evidence Which Can Be Used in a RFE Response
For
a RFE response, the EB1-EA regulatory
provision provides petitioners the opportunity to submit comparable evidence to
establish the alien beneficiary's eligibility, if EB1-EA standards described do
not readily apply to the alien’s occupation. When evaluating such
"comparable" evidence, USCIS will consider whether the criteria are readily
applicable to the alien’s occupation and, if not, whether the evidence
provided is really comparable to the objective criteria listed in the
regulations.
General assertions that the ten objective criteria described in EB1-EA
regulation do not readily apply to the alien’s occupation are not probative
and should be discounted. Similarly, claims that USCIS adjudicators will accept
witness letters as comparable evidence are not persuasive. The petitioner should
explain clearly why it has not submitted evidence that would satisfy at least
three of the criteria set forth in EB1-EA regulation, as well as why the
evidence it has submitted is “comparable” to that required.
The following are examples of where
the comparable evidence might
apply in a RFE Response for coaches, authors, and athletes:
Example
One: An alien beneficiary, who is an Olympic coach whose athlete wins an Olympic
medal while under the principal tutelage of the alien, might provide support to
a petitioner’s RFE argument that the success of this athlete is evidence
comparable to that in EB1-EA regulation, since the EB1-EA criteria might not
readily apply to certain types of athletic coaches, if coaches in their field
do not typically receive nationally recognized coaching awards.
Example
Two: A best selling author might be able to demonstrate evidence comparable to the
specific evidence required for commercial success in EB1-EA regulation, even
though he or she is not a performing artist.
Example
Three: Election to a national all-star team might serve as comparable evidence for
evidence of memberships in EB1-EA regulation.
There
is no comparable evidence for the one-time achievement of a major, international
recognized award. In certain cases, one type of evidence may be sufficient to
satisfy more than one of the criteria set forth in EB1-EA regulation.
7.
Get Help for Your RFE Response, and Eventually Obtain Your Green Card
If you get a Request For
Evidence (RFE) notice for your EB1-EA petition from an USCIS Service Center, it is necessary that you must work
hard to
provide requested evidence in a short time, and persuade the USCIS
adjudicators to approve your case.
It is critical to appropriately
and proficiently reply the Request For Evidence. Incorrect
response of the RFE will directly result in your I-140 petition rejection.
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,
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letters, and more. With the RFE package, you get all the information you need and step-by-step
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get your Green Card.
To further help your RFE response, we also
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Please visit http://www.greencardapply.com/general/premium.htm
for more information.
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