Immigration Focus: EB-1 Extraordinary Ability
As a non-citizen with exceptional abilities, an outstanding professor or researcher, or a multinational executive or manager, you may be qualified for the first-preference EB-1 Employment-Based Immigrant Visa. However, to be eligible, you must fulfill the requirements for one of the specified occupational categories, each of which has its own set of eligibility criteria that must be met.
Today, we will discuss the EB-1 Extraordinary Ability category. This is the first of the three EB-1 categories. To understand the legislative intent of this category, we review the legislative history, which states that this category is intended “for the small percentage of individuals who have risen to the very top of their field of endeavor”.
EB-1 Extraordinary Ability is a category under the US Employment-Based Immigrant Visa (EB-1) program that is designed for individuals who possess exceptional abilities in the arts, sciences, education, business, or athletics.
To be eligible for this category, the individual must demonstrate national or international recognition for their achievements, and meet the following criteria:
- Evidence of seeking to enter the U.S to continue to work in the area of extraordinary ability, and
- evidence that entry will substantially benefit prospectively the U.S. (while regulations do not require evidence of prospective benefit, it is recommended to submit such evidence where the benefit may not be clear), and
- Demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim (satisfy 3 of 10 – see below)
To qualify as a person with extraordinary ability, the person’s entry must substantially benefit the United States in the future. Although neither the statute nor the regulations specifically define the statutory phrase “substantially benefit,” it has been interpreted broadly.
Whether the petitioner demonstrates that the person’s employment meets this requirement requires a fact-dependent assessment of the case. There is no standard rule as to what will substantially benefit the United States.Source: USCIS Policy Manual Chapter 2 – Extraordinary Ability
Evidence of sustained national or international acclaim (satisfy 3 of 10) in EB-1 Extraordinary Ability cases
To demonstrate sustained national or international acclaim, an EB-1 applicant must provide evidence of
Provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal)
or document any 3 of the following requirements:
- (i) Documentation of the applicant’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- (ii) Documentation of the applicant’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
- (iii) Published material about the applicant in professional or major trade publications or other major media, relating to the applicant’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
- (iv) Evidence of the applicant’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
- (v) Evidence of the applicant’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
- (vi) Evidence of the applicant’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
- (vii) Evidence of the display of the applicant’s work in the field at artistic exhibitions or showcases;
- (viii) Evidence that the applicant has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
- (ix) Evidence that the applicant has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
- (x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
There is a catch to the required evidence above. Submission of threshold evidence of 3 of the 10 requirements is not always dispositive and USCIS may require additional evidence in certain cases. USCIS uses a 2 step approach in the adjudication of these cases, in which an officer must review the totality of evidence to determine eligibility after all regulatory requirements have been satisfied.
Okay to submit comparable evidence in EB-1 Extraordinary Ability cases
If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. (8 CFR § 204.5). Comparable evidence may include expert opinion letters attesting to the applicant’s abilities. AFM at 22.2(i)(1)(F).
Meaning of “Sustained Acclaim” in EB-1 Extraordinary Ability cases
In determining whether the beneficiary has enjoyed “sustained” national or international acclaim, the officer should consider that such acclaim must be maintained. However, the term sustained does not imply an age limit on the beneficiary. A beneficiary may be very young or early in his or her career and still be able to show sustained acclaim. There is also no definitive time frame on what constitutes sustained.Source: USCIS Policy Manual Chapter 2 – Extraordinary Ability
No need for a Job Offer
No offer of employment or labor certification is required in the EB-1 Extraordinary Ability category.
An application for an EB-1 Extraordinary Ability visa does not require the support of a job offer, and as a result, anyone may file the petition on behalf of the candidate, including the noncitizen who may choose to self-petition. However, the candidate must still provide evidence that they plan to continue working in their area of exceptional ability and that their work will have a significant impact on the United States in the future.
Regarding endorsement letters to prove EB-1 Extraordinary Ability
Many petitions to classify a person with extraordinary ability contain letters of endorsement. Letters of endorsement, while not without weight, should not form the cornerstone of a successful claim for this classification. Rather, the statements made by the witnesses should be corroborated by documentary evidence in the record. The letters should explain in specific terms why the witnesses believe the beneficiary to be of the caliber of a person with extraordinary ability. Letters that merely reiterate USCIS’ definitions relating to this classification or make general and expansive statements regarding the beneficiary and his or her accomplishments are generally not persuasive.
The relationship or affiliation between the beneficiary and the witness is also a factor the officer should consider when evaluating the significance of witnesses’ statements. It is generally expected that one whose accomplishments have garnered sustained national or international acclaim would have received recognition for his or her accomplishments well beyond the circle of his or her personal and professional acquaintances.
In some cases, letters from others in the beneficiary’s field may merely make general assertions about the beneficiary, and at most, indicate that the beneficiary is a competent, respected figure within the field of endeavor, but the record lacks sufficient, concrete evidence supporting such statements. These letters should be considered, but do not necessarily show the beneficiary’s claimed extraordinary ability.Source: USCIS Policy Manual Chapter 2 – Extraordinary Ability
Submitting evidence to satisfy the USCIS Two-Step Evidentiary Review in EB-1 Extraordinary Ability cases
In cases of EB-1 Extraordinary Ability, the United States Citizenship and Immigration Services (USCIS) uses a two-step process to evaluate the eligibility of an applicant. The two steps are as follows:
Step 1: Assessment of regulatory criteria
In this step, USCIS will assess whether the evidence submitted by the petitioner meets the regulatory criteria for the category of EB-1 Extraordinary Ability. This involves determining, based on a preponderance of the evidence, which evidence objectively meets the parameters of the regulatory description that applies to that type of evidence.
For purposes of the first step of the analysis, officers should consider the quality and caliber of the evidence to determine whether a particular regulatory criterion has been met, to the extent the criterion has qualitative requirements. Officers should not yet make a determination regarding whether or not the person is one of that small percentage who have risen to the very top of the field or if the person has sustained national or international acclaim.Source: USCIS Policy Manual Chapter 2 – Extraordinary Ability
Step 2: Final merits determination
In this step, USCIS will consider all the evidence submitted by the petitioner, taking into account the high level of expertise required for this immigrant classification. This final merits determination will evaluate the evidence in its entirety to make a final decision on the eligibility of the applicant for the EB-1 Extraordinary Ability visa.
The two-step process helps USCIS to ensure that the applicant is thoroughly evaluated and that the evidence submitted supports the claim of exceptional ability in the arts, sciences, education, business, or athletics. The process also helps to ensure that the standards for the EB-1 Extraordinary Ability category are upheld and that the visa is granted only to individuals who meet the high level of expertise required.
…officer must determine whether the person is one of that small percentage who has risen to the very top of the field of endeavor, and that he or she has sustained national or international acclaim.
However, objectively meeting the regulatory criteria in the first step alone does not establish that the person in fact meets the requirements for classification as a person with extraordinary ability.Source: USCIS Policy Manual Chapter 2 – Extraordinary Ability
Therefore, the applicant must provide evidence that not only complies with the regulatory criteria for the EB-1 Extraordinary Ability category but also demonstrates sufficient merit for the final evaluation by the United States Citizenship and Immigration Services (USCIS).
The Final Merits Determination in EB-1 Extraordinary Ability cases
In the second step of the evaluation process, the USCIS officer must consider all the evidence as a whole and assess the petition in its entirety to arrive at a final determination on the merits.
The applicant must be able to demonstrate that they have achieved national or international recognition and their accomplishments have been acknowledged in their area of expertise, indicating that they belong to the elite group who have attained the highest level of success in their field. In other words, USCIS should be able to determine, based on submitted evidence, that the applicant is “one of that small percentage who has risen to the very top of the field of endeavor.” See H.R Rep. No. 101-723 (I), 101st Cong., 2d Sess. 59 (1990) – Legislative history; USCIS Policy Manual Chapter 2 – Extraordinary Ability.
The officer must apply a preponderance of the evidence standard when making this determination.
Participating in the judging of the work of others in the same or an allied field of specialization alone, regardless of the circumstances, should satisfy the regulatory criteria in the first step of the analysis. However, the second step requires the officer to evaluate the person’s participation to determine whether it was indicative of the person being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.
Publishing scholarly articles in professional or major trade publications or other major media alone, regardless of the caliber, should satisfy the regulatory criteria in the first step of the analysis. However, the second step requires the officer to evaluate the person’s publications to determine whether they were indicative of the person being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.Source: USCIS Policy Manual Chapter 2 – Extraordinary Ability
Standard of proof in EB-1 Extraordinary Ability cases
The standard of proof in EB-1 Extraordinary Ability case is preponderance of evidence, which means “more likely than not.” Matter of Martinez, 21 I&N Dec. 1035 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of SooHoo, 11 I&N Dec. 151 (BIA 1965).
Do you or someone you know have extraordinary abilities in the arts, sciences, education, business, or athletics? If so, contact us to discuss eligibility for an EB-1 visa, which provides a pathway to permanent residency in the United States.
We understand the complex and nuanced process involved in EB-1 extraordinary ability cases and are dedicated to helping our clients achieve their goals. Our team will guide you through each step of the process, from gathering and organizing the necessary documentation to representing you in front of USCIS. Schedule a consultation by submitting an inquiry here.