The EB1A Visa

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What You Should Know About The EB1A Visa (Extraordinary Ability)

The EB1A, also known as the alien of extraordinary ability immigration petition, is a one of the employment-based immigration categories. Technically, it is an EB1, which stands for employment based – first preference. The EB1A is a permanent visa, meaning the holder can live in the United States permanently, and it is reserved for those who have “extraordinary ability” in the sciences, arts, athletics, education, and business. The idea with the EB1A is that these foreign nationals have risen to the upper echelons of their respective fields of expertise and may apply for permanent residency (via an EB1A visa) on the basis of their notable achievements and the “sustained national or international acclaim” they have garnered as a result. In other words, no employer is needed for the EB1A group and they are welcome on the basis of their own extraordinary ability and sustained acclaim.

Advantages Of The EB1A

As stated above, unlike other preference categories, the EB1A allows foreign nationals to self-petition, meaning that they are not required to secure an employer in the United States. An alien applying for an EB1A must only demonstrate that she or she plans to continue working in the area of expertise upon entry into the country. Moreover, Labor Certifications, which are often difficult to obtain, are not required, saving an EB1A applicant a significant degree of time and energy.

The EB1A extraordinary ability category is highly advantageous for foreign nationals who have sustained national or international acclaim, because the immigrant visas do not require Labor Certification and are current for everyone in the EB1 categories. An EB1A extraordinary ability applicant can also self petition without an U.S. employer’s sponsorship or even a job offer.

The EB1A applicants who do not require Labor Certification or a sponsorship of U.S. employer enjoy benefits like:

The Labor Certification is a time-consuming process and avoiding it makes EB1A much faster than other immigration categories which require the Labor Certification
Employers who are hesitant to sponsor a foreign employee’s green card application during difficult economic situations can suggest for applicants to apply through the EB1A category to avoid initiating a Labor Certification process or sponsoring the candidate
Applicants without a permanent job or a job offer, such as F1 students, H-1B post-doctor researchers, H-1B and L1 researchers or consultants, J1 visiting scholars, etc. can apply for the EB1A immigration category by themselves as self-petitioners, not needing an employer’s sponsorship

An EB1A applicant enjoys greater independence in his employment, since he does not have to meet Labor Certification conditions, like:

Leaving his existing job
Losing his job
Changing his job description or title
Changing his job location
Losing job because employer lost his business
Profile changing or losing job because employer has merged with another company

An EB1A applicant is not required to comply with the conditions set by the Labor Certification or be stuck to his current employer since his green card application process is under his control and not under his employer’s control.

The EB1A Requirements: Are You An Alien of Extraordinary Ability?

To be eligible for an EB1A green card an EB1A alien applicant must demonstrate (1) sustained national or international acclaim, (2) that he or she intends to continue working in the field of endeavor upon entry into the United States, and (3) that he or she will prospectively benefit the United States.

Regulatory Criteria For The EB1A

“Extraordinary ability” is defined by federal regulations as “as a level of expertise indicating the individual is one of a small percentage who has risen to the very top” of the sciences, the arts, athletics, education, or business. Though this definition can be satisfied with evidence of a one-time achievement of a major, internationally-recognized award (e.g., the Nobel Peace Prize, an Academy Award, an Olympic medal, etc.), it may alternatively be demonstrated with evidence of the satisfaction of three of the ten following regulatory criteria:

(i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(ii) Documentation of the alien’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 alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought.

(iv) Evidence of the alien’s participation, either individually or an a panel, as judge of the work of others in the same or an allied field of specialization for which classification is sought;
(v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

(vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications of the other major media;

(vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases

(viii) Evidence that the alien has performed in a leading or critical role for organizations of establishments that have distinguished reputation;

(ix) Evidence that the alien 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.

According to federal regulations, if these criteria do not apply to the EB1A alien’s occupation, the petitioner may submit comparable evidence to establish the alien’s eligibility as an alien of extraordinary ability.

The EB1A Application – EB1A Requirements In Area Of Work

A critical requirement for an EB1A extraordinary ability application is that the EB1A applicant coming to the United States should continue to work in his area of extraordinary ability. To establish this, the EB1A applicant must submit evidence such as:

Recommendation letters from current or prospective employers
Documents such as contracts, agreements, appointment orders etc, evidencing his commitments
Details regarding the EB1A applicant’s plan to continue working in his field in the United States

“Sustained” National Or International Acclaim For The EB1A Extraordinary Ability Visa

The EB1A extraordinary ability visa requires submission of evidence that the EB1A applicant has “sustained” national or international acclaim. This is to establish that even though the EB1A applicant may have achieved extraordinary ability once, he has not failed to maintain the level of acclaim afterwards.

USCIS will determine whether the EB1A beneficiary has the “sustained” national or international acclaim by examining the sustenance of such an acclaim and that too without termination or interruption. However, a one-time major achievement such as a Nobel Prize may satisfy this requirement, showing that the EB1A applicant has reached the apex of his occupation. The EB1A applicant can also establish that he has the sustained national and international acclaimed by submitting evidence of at least three of the ten EB1A criteria.

The USCIS’s Approach to Assessing An EB1A Application/The EB1A Requirements

The United States Citizenship and Immigration Services (USCIS) uses a two-part approach to determining EB1A eligibility, meaning that after determining whether the individual has provided evidence of a major, internationally-recognized award or met at least three of the ten requisite criteria, USCIS must assess the EB1A petition in totality to determine whether the EB1A petitioner has provided evidence indicating that the foreign national (1) has enjoyed and sustained national or international acclaim and (2) is one of a small percentage who has risen to the very top of the field of “extraordinary ability.”

At the Law Offices of Shawn Sedaghat, we have developed a winning approach to satisfying EB1A criteria -one that seeks to satisfy more than the three out of ten requisite criteria as a means of increasing our client’s chances of success and reducing the likelihood of receiving a Request for Evidence (RFE) from USCIS. Call us now!

Important Aspects Of The EB1A Extraordinary Ability Petition

The EB1A permanent residency process is a two-application process.

The first is the Petition for Alien Worker, which is filed for an immigrant visa and it can be filed by a U.S. employer, or it can be self-petitioned by an individual as in the case of an EB1A for extraordinary ability.

The second is the Petition to Adjust Status to change his or her status to a permanent resident of United States.

Important aspects of an EB1A extraordinary ability petition are enlisted below:

The EB1A extraordinary ability petition does not require a job offer, employer sponsorship or Labor Certification. The EB1A applicant can file a self-petition of a Petition for Alien Worker or his employer could file the Petition for Alien Worker on his behalf.
Even though the standards are rigorous, for the individuals applying for permanent residence without the sponsorship of an employer and have outstanding achievements in an academic field, applying through the EB1A extraordinary ability category is the best option.
Providing evidence like he is “one of the small percentage of individuals who has risen to the very top in a field” which demonstrates the qualifications of an extraordinary alien or scientist/researcher applying as an extraordinary individual (e.g., the EB1 applicant can show that the publications have appeared in the prestigious scientific journals, publishing papers and articles, if he is frequently asked to sit on panels and review other people’s work, etc.).
When applying for the EB1A extraordinary ability category, the EB1A applicant has to establish that he is truly extraordinary and his knowledge, skills, and talent are exceptional.
An artist or athlete can prove his extraordinary ability by comparing himself to others to establish his uniqueness. For instance, winning the “Most Valuable Player” in a country suggests his caliber and superiority.

Simultaneous Petitions Of EB1A and EB2 NIW

There are no rules in the law to prohibit multiple filings of immigrant visa application. Even though the requirements for EB1A extraordinary ability and EB2 national interest waiver petition (NIW) are different, it is possible to file an EB1A and an EB2 NIW petition at the same time, or file an EB1A and an EB1B petition at the same time. This is primarily done to increase the applicants chances of approval.

An applicant can himself file an EB1A and EB2 NIW concurrently, or he can ask his employer as his sponsor, to file a separate Petition for Alien Worker for an EB1A and EB2 NIW, with the required application fee and supporting documents for each immigrant visa category. Care should be taken not to check multiple categories on one Petition for Alien Worker Form.

EB2 National Interest Waiver As An Option For EB1A Or EB1B

Filing for an EB2 NIW (National Interest Waiver) can be considered if there is a doubt that the applicant may not qualify for an EB1A, or he may consider the EB1B (outstanding researcher or professor) category.

Because the EB1A extraordinary ability category has the higher standard which requires the alien applicants to “rise to the very top of the field” many applicants whose academic achievements are insufficient for EB1A applications opt for the EB1B outstanding professor or researcher immigration category and EB2 NIW (National Interest Waiver) category as choices.

The regulation standards for EB1B and EB2 NIW (National Interest Waiver) applications are somewhat lower than that of EB1A, and only require the “internationally recognized as outstanding” for EB1B and “exceptional ability” for EB2 NIW, rather than “at the very top of the field of endeavor” as required by EB1A applications. The overall approval rate of EB1B applications and EB2 NIW (National Interest Waiver) applications are higher than that of EB1A applications.

EB1A Extraordinary Ability And The U.S. Permanent Residency (Green Card) Petition

Applicants seeking permanent residency in the US under the EB1A extraordinary ability category must:

a) File a Petition for Alien Worker and submit required evidence to USCIS. (It is possible to file a Petition to Adjust Status application concurrently with a Petition for Alien Worker application).

b) File a Petition to Adjust Status application for adjustment of status. An immigrant visa number is provided for EB1A if the alien beneficiary is in the U.S. (On the other hand, if the alien beneficiary is outside the United States, the alien could complete the process of status adjustment at a nearest U.S. consulate office).

c) Once the Petition to Adjust Status application is approved by USCIS, the applicant is granted U.S. permanent resident status, and will receive a permanent resident card (green card) in mail. (If the application was done overseas through the immigrant visa process, the applicant can enter the U.S. and receive an immigrant visa attached to the passport at the U.S. port of entry, to serve as evidence of immigrant status until he receives the green card in mail.)

The All-Important EB1A Cover Letter

Since the EB1A is not dependent on any Labor Certification, it is essential for the applicant to write an official cover letter and enclose the appropriate documents for filing the Petition for Alien Worker.

The EB1A petition cover letter is considered to be the official petition and will be the only document reviewed by the immigration officials of the USCIS. Even though all other letters, recommendations, evidences and affidavits are enclosed with the cover letter, they are only considered as supporting documents and are not reviewed directly.

Since the EB1A petition cover letter is the only document reviewed directly by the immigration officials, immense care should be taken to formulate the letter. The EB1A cover letter should be the outcome of detailed analysis of the supporting documents and should highlight the EB1A applicant’s technical expertise and business background. Intense effort should be taken to word and draft the EB1A cover letter, ensuring that the final EB1A document aligns to the EB1A legal requirements and presents the capabilities of the EB1A applicant perfectly.

The Petition Cover Letter Is An Absolutely Critical Component Of The EB1A Application

The EB1A cover letter is the final compilation of all the supporting documents of the EB1A applicant, and the following considerations should be undertaken in drafting the EB1A letter:

The EB1A cover letter should elucidate the EB1A applicant’s field of endeavor, analyze technical/ business expertise, and all the attributes which ascertain his superiority in the selected field of endeavor should be highlighted.
The EB1A cover letter should clearly detail the evidence supporting the EB1A application and how they meet the criteria laid down by USCIS for the category.
The EB1A cover letter should outline the applicant’s professional abilities in detail by highlighting his skills and achievements. Reference should be made through supporting evidence to support his claims of being an individual with extraordinary abilities.

It has been observed that just reading through the USCIS EB1A regulations does not help EB1A applicants file a successful petition. The EB1A regulations only detail the documentary evidence needed to apply for this particular EB1A classification.

The USCIS officials evaluating the evidence presented by EB1A applicants make a thorough study of the documents enclosed to determine if all the criteria satisfy the EB1A regulations and to establish the EB1A applicant’s professional merits. EB1A petitions are often rejected due to lack of substantiated evidence. It is therefore imperative that the EB1A cover letter and all the supporting evidences are significant enough to prove the EB1A applicant’s claims.

The USCIS EB1A cover letter is normally about 18 to 30 pages in length and is the most important part of the EB1A application and it is advisable to solicit professional assistance in presenting it. Almost all denials arise out of people filing for EB1A themselves, and only when the USCIS issues a Request For Evidence (RFE) they approach a professional for support. Our offices have years of experience drafting successful EB1A cover letters and may be able to provide help in your case!

Common Mistakes To Avoid (EB1A and EB1B)

The Most Frequent Errors Made By Petitioners In EB1A And EB1B Cases

EB1A and EB1B petitioners frequently commit the following errors while filing:

(1) They present too many evidences to support their case

(2) The petition cover letter is inadequate and poorly outlined

(3) The letters of support submitted by references is badly drafted

(4) The arguments presented in support of claim lack substance

It is commonly observed that petitioners present a huge amount of documentary evidence to support their application. This is counterproductive since USCIS examiners work on stringent deadlines and have limited time to review each application. It is therefore advisable to improve the draft quality of the documents tendered and limit the number of submissions. To do justice to each application the examiners often stop midway through lengthy submissions and base their decisions on the documents reviewed until then.

It is therefore imperative that reference letters from experts establish the following

It has to be completely ascertained that the letter writer is authentic and an authority in his field of endeavor.
The letter writer’s relationship/acquaintance with the applicant must be stated to support the fact that he is aware of the claims made in the letter.
The reference provided by the expert should be appropriate and relevant to the applicant’s claims.

The Argument Of The Petition Is Very Important

It has been observed that a good number of deserving applicants have been rejected due to improper presentation and supportive evidence, but a sizeable number of average cases have been approved by the USCIS because of the extraordinary argument and professionally presented credentials. The examiner is the deciding authority and effort has to be taken to convince him of the merits of the case.

It is therefore critical that all supporting evidence is presented in a convincing manner and the arguments put forth in support of the claim are substantial and conclusive. It goes without saying then that a case well presented, supported by evidence and aligned to the exact legal requirements articulated by USCIS is more likely to be approved than a highly qualified and deserving applicant who presents his case poorly to the authorities.

It has to be emphasized that lengthy and excessively supported applications or very short and insufficiently evidenced cases are very likely to be rejected. A well-balanced application is a combination of proper presentation and well supported evidence.

Adjudication Standards Laid Down By USCIS For The EB1 And RFE – Submission of All Relevant Evidence

Several issues pertaining to the EB1 adjudication were discussed in an interaction between the immigration community and the USCIS and explanations were given as to when it will deny a EB1 case outright, and when it will issue a Request for Evidence (RFE), or a Notice of Intent to Deny (“NOID”).

An RFE could be issued by the USCIS if the required “initial evidence” is not enough and additional information or documentation is required.
A NOID could be issued if the examiner is not completely convinced about the case but is willing to consider if the case is supported appropriately.
An outright denial of the EB1A petition, without issuing an RFE or NOID, is often done when the “initial evidence” provided is not convincing.

For an EB1A extraordinary ability case, the required initial evidence is defined as either (1) evidence of a major award or achievement, or (2) evidence of three of the 10 EB1A criteria.

For an EB1B outstanding researcher or professor case, the required initial evidence is defined as: (1) evidence to two of the six criteria, (2) evidence that the alien has at least three years of experience in teaching or research, and (3) an offer of employment from a qualified employer.

The decision of the USCIS on EB1 adjudications has been observed to be inconsistent and discretionary since it could reject a case outright, without an RFE or NOID, if they believed that the relevant “initial evidence” for the case is “lacking.” It is therefore prudent to present all available evidence in the initial submission to the USCIS. It is therefore not advisable to hide or hold back any evidence in the initial submission as it could lead to adverse decisions by the examiner or even outright rejection. It is always in the best interest of the petitioner to submit a complete and well laid out case to increase the chances of an approval. Our offices can help!

The EB1A Processing Time

Although the processing time to obtain an EB1A green card is influenced by factors including the EB1A applicant’s ability to complete the required EB1A documentation accurately and to which service center the immigration petition and supporting documents are being filed, the following information provides general insight into EB1A petition processing times.

According to the current USCIS Visa Bulletin, the final action dates for first-preference employment-based immigration petitions (including the EB1A) are current, meaning that the USCIS is up-to-date in reviewing EB1A immigration petitions. With the exception of China and India, which have a final action date of January of 2012 (USCIS is not reviewing petitions filed after this date), the final action dates for foreign nationals from all other countries are current.

It is important to note that the pullback of a final action date does not necessarily mean that this is a long-term retrogression and, in fact, we have seen drastic movements in priority dates from month to month. For example, where in July of 2017 the priority date for China may have been January 1, 2012, within a month or two, we may witness the advancement of a priority date to August 15, 2015. This fluctuation is a product of the USCIS’s abundance of caution; upon pulling back a priority date, USCIS may realize that it has overestimated its load, and correct itself by moving forward the final action date.

The charts below demonstrate the drastic fluctuation that is typical of final action dates outlined by USCIS. Within a span of six months (January 2017 to July 2017), China’s final action date was pulled back 7 years. Thus, as the following charts demonstrate, the dates listed on the USCIS’s Visa Bulletin are to be taken with a grain of salt, and should not deter the filing of an EB1A green card petition.

What Are Requests For Evidence (“RFEs”)?

RFEs are generally issued by the government when it believes it lacks the evidence needed to adjudicate a petition, and serves as an opportunity for an alien to bolster his/her case with additional evidence or clarify information submitted in the initial petition.

No more than one RFE is typically issued for a given case.

Submitting a comprehensive and well-executed initial petition can reduce the chances of receiving an RFE from USCIS. Our comprehensive approach to filing petitions for the EB1A green card has been successful in bypassing RFEs and has resulted in many immediate approval notices for petitions filed on behalf of foreign nationals with extraordinary ability in athletics, sciences, business, and arts. Some of our EB1A petitions approved without the issuance of an RFE by the USCIS include those filed on behalf of athletes, scholars, and judges.

Despite the success of our approach, the government may determine, for one reason or another, that it requires additional information or clarification to reach a determination on the petition. In such cases, our clients need not panic, as we have developed a successful method of responding to RFEs–an approach that not only replies with promptness, but addresses the issues raised by the USCIS with a point-by-point, comprehensive line of attack so as to better our clients’ prospects of approval. Contact our offices to start the process!

What Happens If The EB1 Is Denied/Appealed?

What If The EB1 (Petition for Alien Worker) Is Denied?

Let’s say your Petition for Alien Worker for EB1A extraordinary ability is denied because the USCIS disagreed with your claim that “the individual is among a small percentage of people who have risen to the very top of the field of endeavor”. Now what? The reasons for denial:

“An overall view of the record suggests that the beneficiary has played an important role in the research activities. However, the evidence presented does not establish that the petitioner is the the individual of a small percentage who has risen to the very top of the field of endeavor.”
Evidence supporting the claim that the petitioner “is the individual of a small percentage who has risen to the very top of the field of endeavor” is not well supported.
Likewise, “The alien’s original contributions, publications and presentation of research work are inherent to the position of a researcher, the alien’s achievement is not necessarily sufficient to meet the threshold of nationally or internationally recognized excellence.”

What could be an appropriate course of action?

Appeal from the denial; or
A fresh application for an EB1A extraordinary ability Petition for Alien Worker

Who Has Authority To Review An Appeal?

In the event an EB1A extraordinary ability petition is denied by the USCIS, an appeal for review can be addressed to the next level of adjudication. The authority to review such an appeal rests with:

The USCIS through its Administrative Appeals Office (AAO); and
The Executive Office for Immigration Review, United States Department of Justice through its Board of Immigration Appeals (BIA).

The EB1A appeal may be only be submitted by the original petitioner. If the AAO receives the EB1A appeal for review, it ascertains whether the reasons for denial have been addressed and the EB1A requirements have been met. The EB1A appeal is subsequently treated as a motion and an approval is issued.

In the event of the petitioner being represented by another person or a legal representative, a USCIS Form G-28 (Notice of Entry or Appearance as Attorney or Representative) duly completed and signed by both the representative and the petitioner has to be submitted.

The Appeal Process

If the USCIS has denied a petition, an appeal can be initiated only if the petitioner has the conviction that he can substantiate his cause. After careful scrutiny of the appeal, the AAO decides on the next course of action. Filing of the appeal has to be done at the USCIS Service Center involved in the original processing and strict adherence to the process and timelines laid down by the authority have to be observed. The petitioner has the liberty to submit a detailed clarification supporting his appeal. After reviewing the appeal, the authority could:

Accept the appeal and amend the original verdict;
Reject the appeal and maintain the original verdict; or
Revert the proceedings back to the original office for processing.

The petitioner should carefully study the verdict issued by the USCIS if the Petition for Alien Worker is denied and then appeal the denial. A note outlining the USCIS verdict will be issued to the petitioner with details of the reasons for the denial, appropriate appellate jurisdiction (e.g., The Administrative Appeals Office AAO) and the necessary procedures for filing an appeal. This appeal should be done within a period of 30 days from the date of denial of the application.

The Notice of Appeal or Motion should be filed if the appeal is addressed to the Administrative Appeals Office, which then informs the USCIS Service Center involved in the original processing of the appeal against the denial. This appeal must be filed with the appropriate fee and an explanation substantiating your claim. This must be done with the same USCIS service center where the application was originally filed.

If your EB1A case has been denied what can you do? Here are some scenarios:

1. A Motion To Reopen

Along with an appeal to review a denial, the EB1A applicant can also submit a request to the USCIS Service Center which has issued the denial, to re-evaluate his case by presenting fresh details, documents and proof with legal acceptance to substantiate his claim. If the reason for denial is non-submission of essential documents, then the EB1A applicant can request in writing for a re-evaluation of his case by submitting the required documents and paying the required charges to the USCIS Service Center which had denied his case. This process is called the “Motion to Reopen”. Re-evaluating a case (that is, the “Motion to Reopen”) is often a faster means of resolution than an appeal which is a long drawn process.
The proposition to re-evaluate the denial of a petition by the USCIS is the outcome of an inappropriate application and the re-evaluation has to be submitted within 30 days from the date of denial. The proposition to re-evaluate a denial (or the “Motion to Reopen”) has to be submitted on a Notice of Appeal or Motion, which is a formal request to the USCIS Service Center which has issued the denial, to re-consider the case. This appeal must be submitted along with an explanation and required evidence to support the claim.

2. Options For Re-Applying Under A Similar Category

An appeal implies that the decision of the USCIS to deny a petition is faulty and that it has erred in its evaluation of the case. It is, therefore, advisable to avoid an appeal and instead submit a well prepared new petition. An appeal for denial is recommended only if the petitioner has powerful proof to support his claim. The AAO is known to take a long time to address an appeal for denial, at times almost a year or more. Moreover, not all appeals have resulted in a reversal of decision. It is therefore prudent to re-apply or approach the USCIS as a fresh applicant under the EB1 category or under alternative categories like EB1B for outstanding researcher or professor. Likewise, categories like EB2 National Interest Waiver (NIW), or even Labor Certification can be considered for application.
While re-applying under a similar category, it is imperative to disclose details of previous denials submitted along with the fresh Petition for Alien Worker.
Substantial documentary proofs like newer patents, academic submissions, articles in journals, additional citations, letters of support and other evidences have to be enclosed with the fresh application to strengthen the case. These submissions are regulatory for EB1A, EB1B, and EB2 NIW petitions. Though recent denials have less bearing on new applications, the following approaches would be advisable.
A fresh Petition for Alien Worker with supportive evidence addressing the earlier denial and additional documents to strengthen the case.
Applying under alternative EB1 categories like EB1B categories or EB2 National Interest Waiver (NIW) where the EB1 applicant has noteworthy achievements in his field of endeavor which are in the national interest of the U.S.A.
Applying under the restrictive Labor Certification category, considering the EB1 applicant’s specific expertise and current business requirements.
Applying for permanent residency of the U.S through alternative routes like sponsorship through family, dependence on spouse’s employment, asylum or through the diversity visa lottery program

Winning Strategies For An EB1 Case

1. Listing Of Evidence

The EB1A extraordinary ability petition approval according to the USCIS is dependent on the significance of each type of evidence submitted. The USCIS examiners have been empowered with a wide spectrum of decision making to appraise the EB1A evidence. Therefore, it is imperative to provide substantial evidence to support the EB1A petition and to distinguish ways in which the EB1A applicant stands out from the rest of his peers. Though the USCIS has consistently adhered to its statutes and regulations, it has increased its standards of review for the EB1A extraordinary ability category approval. This is like the standards set for the EB2 NIW (National Interest Waiver) and EB1B outstanding ability adjudications.

The importance of presenting strong evidence to prove eligibility and capability to the USCIS Service Center cannot be understated. RFEs (Requests for Evidence) issued by the USCIS commonly seek to clarify the applicant’s research experience, national or international recognition, and the nature of his professional capacity. Denial of an EB1A immigration petition does not have an adverse effect on the EB1A applicant’s future immigration petitions through the same category or in different categories (i.e., if an applicant qualifies for an EB1A extraordinary ability visa, he may also qualify for an EB1B or EB2 NIW). It is therefore important that the applicant boldly approaches the authorities and argues strongly on the evidence provided by him.

2. EB1A Extraordinary Ability Application – Petition Strategies

Evaluation: It is important to acknowledge that the EB1A extraordinary ability category is meant to be restrictive because it is understood that not everyone has extraordinary ability. It is also important to understand that the quality of evidence submitted is more important than the quantity since the USCIS adjudicators can be weighed down and exasperated by unnecessarily excessive documentation. Careful evaluation is essential and it is advisable to solicit suggestions from experts, employers and friends before filing. A well-presented EB1A case in the initial stages helps avoid future delays due to RFEs. Careful analysis helps strengthen the EB1A case, and highlight the EB1A applicant’s accomplishments.
The Petition Cover Letter: It is important to present accomplishments and qualifications in general terms since the USCIS examiners are not experts in your field and have strict timelines to adhere to. A well written and easy to read EB1A petition cover letter would make it easy for someone who is not familiar with the material to understand and process it. Therefore, it is imperative to clearly, crisply and simply present all the documents and evidence to support the EB1A applicant’s EB1A application. A good introductory brief and conclusive summary clearly indexed exhibits and neatly laid out evidence is key to presenting a good EB1A petition cover letter.
Selective And Strong Evidence: USCIS examiners are more likely to favor a shorter presentation that a longer one. Being selective and including only strong evidence and avoiding irrelevant documentation is advisable. Meeting three or four of the ten EB1A extraordinary ability criteria with strong evidence is more effective than weak evidence for additional categories.
Submit Persuasive Arguments: A balanced submission, which is neither excessively long filled with unnecessary evidence nor a short one which does not present the applicants ability appropriately, is critical. Therefore, it is safe to assume that the EB1A petition is won or lost on the strength of the arguments presented. It is imperative to outline the EB1A applicant’s “extraordinary” abilities clearly and substantiate them with strong references and evidence.
Avoid Being Humble: The EB1A applicant should not be humble about his achievements and should always present the strongest case possible by presenting evidence that clearly sets him apart from others in his field. The USCIS adjudicating officer would be looking for extraordinary abilities, and therefore use of words which explains his abilities in the best possible way is advisable. Therefore, avoid the use of humble words. For example, a “research scholar”, or a “research scientist”, sounds much better than, a “research assistant” or “teaching assistant” and it is very hard to claim to have “extraordinary ability” with titles like these. But care must be taken to avoid giving incorrect evidence which may seriously harm the EB1A applicants case, and can be detrimental to future applications too.
Petition With A Specific Job Offer: An individual seeking an EB1A extraordinary ability petition should offer persuasive evidence of excellence in his work and performance. The easiest way to do this is with a specific job offer which clearly describes the work that will be done. The USCIS regulations state that, “No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification.” However, the EB1A petition must be accompanied by clear evidence, like letters from prospective employers, evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he intends to continue his or her work in the United States. Even though USCIS does not require that the EB1A applicant must have a current job, having a job does guarantee that he can support himself and that he is using the extraordinary capabilities that he claims in his EB1A application.
Intention To Continue Work: The EB1A applicant of extraordinary ability need not to seek “employment” in the United States. He must, however, continue to work in the area of extraordinary ability in the US. Thus, presenting employment offers, prearranged commitments, arrangements to engage in self-employment, or other evidence proves that he will continue to work in the area extraordinary ability.
Emphasize Creativity: The EB1A extraordinary ability petition needs to highlight the EB1A applicant’s work is as an expert in his field therefore emphasizing the innovative side of his work to establish his extraordinary ability.
Awards, Prizes, Grants And Fellowships: It is just not enough to attach evidence of awards, prizes, grants and fellowships. It is essential to highlight criteria for the award and explain how the awards are based upon achievements. This helps the examining team to consider an application favorably.
Judge Of Others’ Work: A letter from the editor of the journal that the EB1A applicant has reviewed or where he has acted as a judge of others’ work qualitatively helps the reviewer understand the EB1A applicant’s extraordinary ability.
Scholarly Articles And Citations: Authorship of scholarly articles and the citation of the articles by other scholars help understand the exceptional skills that the EB1A applicant possesses. Therefore, a citation search report and the impact factor for the journals where the EB1A applicant’s papers are published helps strengthen the case. For citation search tools, the Google Scholar, Scopus, SciFinder, and ISI Web of Science provide more citation search results. For EB1A petitions, letters of recommendation are important but not sufficient. Convincing evidence demonstrating the importance of the EB1A applicant’s research, journal papers, citations, patents, etc. and letters highlighting the EB1A applicant’s extraordinary ability are imperative.
Reference Letters: If the EB1A applicant does not have good reference letters, he could consider other methods like details about the journals which have published his articles or a peer review process with notes about the types of experts chosen as manuscript reviewers or an explanation with statistics about the actual or potential benefits of his work.
Economic Benefits: The EB1A applicant may discuss the economic benefits of his work and additionally emphasize the social importance of his work. For example, if an EB1A applicant’s work may be tied to some medical breakthrough or a significant national social or political benefit, the EB1A extraordinary ability petition is more likely to be approved. Information which will have a stronger psychological impact will help the examiner realize the important of the EB1 applicant’s work and feel good about approving the case.
Publications: Having many publications is advantageous, but not necessary, but having strong reference letters can get cases approved. The EB1A applicant should always try to emphasize the significance of his work and his extraordinary performance in the research and not be discouraged about fewer publications.
Prevailing Wage: If the salary offered is high, then the EB1A case will look better but if the salary offered is low, the EB1A applicant will have to explain why he or she is earning substantially less than that of his or her peers. However, it is not a criterion for rejection.
Benefiting The United States: EB1A applicants who intend to work in the area of their extraordinary ability or exceptional ability should substantially benefit the interests of the United States in some way, and these individuals cold pass this test without submitting additional documentation.
Holding Back Evidence: Holding back some evidence, in anticipation of a RFE from USCIS is not recommended because of the problem of submitting documentation dated after the initial filing

Tips And Hacks For A More Successful EB1 Case

Even the most qualified petitioners can use some tips on how to file their petitions and a bit of luck. Well, you are on your own in the luck department, but here are some tips you can use for a more successful EB1 case.

1) Reference Letters And Testimony From Independent Experts

Reference letters (or support letters) submitted by other experts in the field, which are being presented as evidence, should be carefully screened for statement and inference. The EB1 petitioner should work with people writing support letters, review and improve the letters before they are finalized. The USCIS examiner’s evaluation is favorable towards letters of support from expert witnesses who are not directly connected with the EB1 applicant. Experts who knew the EB1 applicant from his published work would prove that the EB1 applicant has significant national or international attention.

2) Published Material

USCIS does not favor articles which only mention the EB1 petitioner’s name or work as evidence of “the applicant’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.”

3) Wrong Criteria

Not all the criteria are appropriate for every EB1 petitioner. Misapplication of any criterion is to be avoided by scrutiny of the classification to be filled.

4) Regulations

The EB1 applicant should quote the regulations directly when writing the petition cover letter and/or reference letters to help the adjudicator relate to the context and treat the evidence favorably.

5) Three Criteria

Three well substantiated criteria with primary evidence and strong support is good enough for a positive response.

6) Establishing National Or International Acclaim

The USCIS service centers have often denied an EB1 petition because the individual failed to establish international acclaim which is arguable because simply having national, not international, acclaim in each field is insufficient to establish extraordinary ability.

7) Time To Petition For EB1A Classification

The USCIS could reject post-filing submissions of evidence especially pertaining to an EB1 petitioner’s necessary qualifications at the time of the original (or initial) petition. Even for publications, it has been observed that the case may become stronger if an EB1 petitioner can wait until his important article is published.

8) Field Of Endeavor

It is important to think tactically about identifying the field of endeavor in which the EB1 petitioner is seeking extraordinary ability classification. Although the rule is to have the narrowest field possible, the USCIS might dismiss any evidence submitted in support of extraordinary ability outside the narrow category.

9) Young EB1 Applicants

Some examiners at the USCIS feel that age is a significant factor in determining eligibility, but a young EB1 applicant filing for an extraordinary ability category should be able to strongly showcase his extraordinary abilities despite his short career.

10) Statements To Avoid

It is advisable to avoid statements that imply shortage of U.S. workers in the EB1 applicant’s field which might prompt the USCIS examiner to recommend going through the Labor Certification process and not the EB1A application.

11) The Nature Of The Beneficiary

Comments on the hard-working nature of the EB1 applicant would not be relevant to the issue of the EB1 applicant’s claim of having an extraordinary ability. Hence complimenting the hard work with significance of achievement is imperative.

12) Determining “Sustained” National Or International Acclaim

The EB1 applicant’s “sustained” national or international acclaim implies that such acclaim must have been maintained for over a long period of time. But, the word “sustained” does not imply an age. An EB1 applicant could be young in his career and still may show sustained national or international acclaim. No time frame for the word of “sustained” has been prescribed. That is, if an EB1 applicant was recognized for an achievement, the USCIS officer will determine whether the EB1 applicant continues to maintain the acclaim level in the field. USCIS will then review all the evidence in the record in its totality to determine if the EB1 applicant has sustained national or international acclaim and is one of that small percentage who has risen to the very top of the field of endeavor. It is important however to show that the EB1 applicant meets at least 3 of the regulatory criteria, which could be 1) the significance of the work of others judged by the EB1 applicant, 2) the significance and importance of the scholarly works created by the EB1 applicant, and 3) the degree to which the salary or other remuneration the EB1 applicant commanded was higher than others in his field. The stronger the evidence is in terms of the EB1 applicant’s achievements in the field compared to others, the more appropriately USCIS can process the EB1 petition.

13) The USCIS’ Evaluation Of Submitted Evidence

The evidence for sustained national or international acclaim should include documents of a one-time achievement (a major international recognized award), or at least three of the ten types of evidence listed in the regulations. For a Petition for Alien Worker application as an EB1 applicant of extraordinary ability, USCIS adjudicators will look at the quality not the quantity of the evidence. On a case-by-case basis, the USCIS will evaluate the quality of submitted evidence to determine whether the evidence submitted satisfies the qualification requirements to establish the eligibility for an EB1A immigration visa. The USCIS’ adjudication guideline also includes the statement that the EB1A application does not need to use the words “extraordinary ability” specifically but that the supporting documents should prove the EB1 applicant’s contributions to a field qualify the extraordinary ability requirements. The EB1 applicant could be stronger in one area than in others, but the overall impression should be that the EB1 applicant has extraordinary ability. If an USCIS adjudicator needs to request additional evidence, the adjudicator may request for evidence that the petitioner could provide to corroborate the statements made in the original petition documents.

14) Applicant’s “Original” Scientific Contributions To The Field

To satisfy the EB1A extraordinary ability criterion of “original” scientific contributions, the petitioner should provide evidence of the EB1 applicant’s “original contributions of major significance” to the field. USCIS officers will then evaluate whether the EB1A applicant’s work constitutes major, significant contributions to the field. Published work and funded research as “original contributions” is not sufficient to establish that the EB1A applicant’s work has “major significance.” For example, peer-reviewed presentations or peer-reviewed articles in scholarly journals may be considered significant contributions to a field if they have motivated extensive commentary or received a good number of citations. Publishing or presenting an applicant’s work or receiving grant funding or patents and patent applications carry little weight unless they demonstrate an international reputation in the field, and a petitioner should document the widespread use or application of the patent.

15) Applicant’s Original Contribution To The Field

In scientific fields, citations are required when a researcher uses another scientist’s research findings for his or her own research. USCIS will evaluate the submitted citations to determine the significance of the EB1 applicant’s original contribution to the field. The frequent citations by independent researchers certainly shows their interest in the EB1 applicant’s work. Noteworthy citation indices serve as evidence that the EB1 applicant is an authority in the field. The citation index can be obtained with the help of tools such as Google Scholar, SciFinder, and Web of Science, to name a few.

16) Authorship Of Scholarly Books Or Articles

The petitioner may present evidence of the EB1 applicant’s authorship of scholarly articles in the field, in professional or major trade publications or other major media to satisfy the EB1A regulation. The evidence should however establish the significance or value of the published material. The publications must be in peer-reviewed academic journals, preferably those with international circulation and have been widely cited by independent researchers in the field. USCIS adjudicators determine whether the EB1 applicant has authored scholarly articles in the field and whether the publication is a scholarly book, or a scholarly journal with international circulation. Scholarly articles could include an abstract, a description of methodology, footnotes, endnotes, and bibliography. 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 have been widely cited or adopted by the industry or professional community. 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, could be good evidence.

17) Published Material About The Applicant

USCIS adjudicators will determine whether the published material was about the EB1 applicant’s contributions nationally and internationally in the field of his expertise and not just about his/her employer or another organization that the EB1 applicant beneficiary is associated with. The submitted evidence for published material should include the circulation, the intended audience, and the title, date, and author of the material. It has to be noted that published abstracts do not carry the same weight as full-length articles, and an unpublished manuscript is not published material. Articles published in one country with only domestic circulation, such as many native language medical journals do not satisfy the international reputation standard.

18) Participation As The Judge Of The Work Of Others

The EB1 petitioner could show that he has been invited to judge the work of others and has actually participated in the judging of the work of others in the field. Reviewing grants or articles can also satisfy this criterion. General letters or requests passed down from an advisor or mentor cannot be accounted. Examples: Peer reviewing for a scholarly journal, with evidence of a request from the journal to do the peer review, and any proof that the review was actually completed; or serving as a committee member of a Ph.D. dissertation, which makes the final judgment for a candidate’s doctoral degree, as evidenced by school or department records.

19) Applicant’s Membership In Associations In The Academic Field

EB1 applicants having a membership to reputable associations should prove that there is a selective standard for admission to the association. The EB1 applicant should submit evidence of selective membership criteria along with evidence of membership in the association. USCIS adjudicators will determine if the EB1 applicant’s membership association requires outstanding achievements in the academic field. In association having multiple levels of membership, the EB1 applicant’s level of membership should require outstanding achievements in the academic field like the following:
Membership solely based on a level of education
Membership solely based on years of experience in a particular field
Membership based on the payment of a fee
Membership by subscribing to an association’s publications

20) Applicant’s Receipt Of Lesser Nationally Or Internationally Recognized Prizes Or Awards For Excellence In The Field

For this criterion, it is important to include not just proof of the award, but proof that the award is important in the field which could include evidence of media coverage and some degree of prestige must attach to the given award. USCIS adjudicators will establish if the EB1 applicant was the recipient of prizes or awards. The considerations for major prizes or awards of outstanding achievement in the field include:
The criteria used to grant the major prizes or awards
The number of prize recipients or awardees
Limitations on competitors

21) Prayer!!!

Since the review of your file is not done by machine or a computer, but by a human being, the results are highly subjective and depend to a great deal on the officer that ends up reviewing your case. Hope and wish for a sympathetic officer to review your case.

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