EB-1 Extraordinary Ability immigrant visas

Google

 

By Shawn Sedaghat

 

EB-1 Aliens of Extraordinary Ability immigrant visas for select few who are at the top of their field.

 

Under this category, listed under 8CFR 204.5(h) An alien, or any person on behalf of the alien, may file an I–140 visa petition for classification under section 203(b)(1)(A) of the Act as an alien of extraordinary ability in the sciences, arts, education, business, or athletics.

It is important to note under this category you may apply on your own behalf and do not require an employer in some instances.

 

What is Extraordinary Ability ?

Extraordinary ability means 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.

What proof is needed ?

Either A or B below:

 

A.

Evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, international recognized award),

 

 

B.

or at least three of the following*:

You must meet 3 out of the 10 listed criteria below to prove extraordinary ability in your field:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that your work has been displayed at artistic exhibitions or showcases
  • Evidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of your commercial successes in the performing arts

* 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.

 

Do I have to have an employer?
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 petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise.

For example this evidence may include letters from prospective employers,  evidence of prearranged commitments such as contracts, or a statement from you detailing plans on how you intend to continue your work in the United States.

 

 

Important details:

Although each one of the 10 categories listed above seems self explanatory at first blush, in fact mot if not all have been subject to speculation and interpretation to the point that the USCIA has had to issue clarifications to the adjudication officers assessing these petitions. The following are some important details released in a memorandum to adjudicating officers, on December 22, 2010 by the USCIS:

 

Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor

 

a- You must first show that you have been the recipient of prizes or awards.

The description of this type of evidence in the regulation provides that the focus should be on the alien's receipt of the awards or prizes, as opposed to his or her employer's receipt of the awards or prizes.

b. Was this award or prize a lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

Relevant considerations regarding whether the basis for granting the prizes or awards was excellence in the field include, but are not limited to: (i) The criteria used to grant the awards or prizes; (ii)The national or international significance of the awards or prizes in the field; and (iii) The number of awardees or prize recipients as well as any limitations on competitors (an award limited to competitors from a single institution, for example, may have little national or international significance).

 

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;

 

Is the association for which the alien claims membership requires that members have outstanding achievements in the field as judged by recognized experts in that field.

The petitioner must show that membership in the associations is based on the alien being judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. The USCIS gives the following example: admission to membership in the National Academy of Sciences as a Foreign Associate requires individuals to be nominated by an academy member, and membership is ultimately granted based upon recognition of the individual’s distinguished achievements in original research. See www.nasonline.org.

Associations may have multiple levels of membership. The level of membership afforded to the alien must show that in order to obtain that level of membership, the alien was judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. Relevant factors that may lead to a conclusion that the alien’s membership in the associations was not based on outstanding achievements in the field include, but are not limited to, instances where the alien’s membership was based:

(i)Solely on a level of education or years of experience in a particular field;

(ii)On the payment of a fee or by subscribing to an association’s publications; or

(iii)On a requirement, compulsory or otherwise, for employment in certain occupations, such as union membership or guild affiliation for actors.

 

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. Such evidence shall include the title, date, and author of the material, and any necessary translation;

 

(1) Was the published material was related to the alien and the alien’s specific work in the field for which classification is sought.

The published material should be about the alien relating to his or her work in the field, not just about his or her employer or another organization that he or she is associated with. Note that marketing materials created for the purpose of selling the alien’s products or promoting his or her services are not generally considered to be published material about the beneficiary.

(2) Determine whether the publication qualifies as a professional publication or major trade publication or a major media publication. Evidence of published material in professional or major trade publications or in other major media publications about the alien should establish that the circulation (on-line or in print) is high compared to other circulation statistics and show who the intended audience of the publication is, as well as the title, date and author of the material.

 

Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought.

 

Have you acted as the judge of the work of others in the same or an allied field of specialization. The petitioner must show that the alien has not only been invited to judge the work of others, but also that the alien actually participated in the judging of the work of others in the same or allied field of specialization.

The USCIA gives the following example:

(i)Peer reviewing for a scholarly journal, as evidenced by a request from the journal to the alien to do the review, accompanied by proof that the review was actually completed.

(ii)Serving as a member of a Ph.D. dissertation committee that makes the final judgment as to whether an individual candidate’s body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.

 

Evidence of the alien's original scientific, scholarly, artistic, athletic, or business related contributions of major significance in the field;


(1) Have you made original contributions in the field.

(2) Was your original contributions of major significance to the field. USCIS officers have been instructed to evaluate whether the original work constitutes major, significant contributions to the field. Although funded and published work may be “original,” this fact alone is not sufficient to establish that the work is of major significance. For example, peer-reviewed presentations at academic symposia or peer-reviewed articles in scholarly journals that have provoked widespread commentary or received notice from others working in the field, or entries (particularly a goodly number) in a citation index which cite the alien's work as authoritative in the field, may be probative of the significance of the alien’s contributions to the field of endeavor.

USCIS officers have been instructed to take into account the probative analysis that experts in the field may provide in opinion letters regarding the significance of the alien’s contributions in order to assist in giving an assessment of the alien’s original contributions of major significance. That said, not all expert letters provide such analysis. Letters that specifically articulate how the alien’s contributions are of major significance to the field and its impact

 

Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

(1) Have you authored scholarly articles in the field.  As defined in the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college, university, or research institution. In general, it should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article.

For other fields, a scholarly article should be written for learned persons in that field. ("Learned" is defined as "having or demonstrating profound knowledge or scholarship"). Learned persons include all persons having profound knowledge of a field.


(2) Does the publication qualifies as a professional publication or major trade publication or a major media publication. Evidence of published material in professional or major trade publications or in other major media publications should establish that the circulation (on-line or in print) is high compared to other circulation statistics and who the intended audience of the publication is.

 

Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

 

(1) Whether the work that was displayed is in fact your work product. The description of this type of evidence in the regulation provides that the work must be the alien's.

(2) Were the venues (virtual or otherwise) where your work was displayed in fact artistic exhibitions or showcases. Webster’s online dictionary defines. This is a simple “dictionary” definition analysis. i.e: Showcase as a setting, occasion, or medium for exhibiting something or someone especially in an attractive or favorable aspect.

(See: http://www.merriam-webster.com/dictionary/showcase)

 

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

(1) Have you performed in a leading or critical roles for organizations or establishments.

In evaluating such evidence, USCIS officers have been instructed to examine whether the role is (or was) leading or critical. If a leading role, the evidence must establish that you are (or was) a leader. A title, with appropriate matching duties, can help to establish if a role is (or was), in fact, leading. If a critical role, the evidence must establish that you have contributed in a way that is of significant importance to the outcome of the organization or establishment’s activities. A supporting role may be considered “critical” if your performance in the role is (or was) important in that way. It is not the title of the your role, but rather your performance in the role that determines whether the role is (or was) critical.

This is one criterion where letters from individuals with personal knowledge of the significance of the alien’s leading or critical role can be particularly helpful to USCIS officers in making this determination as long as the letters contain detailed and probative information that specifically addresses how the alien’s role for the organization or establishment was leading or critical. Note: 8 CFR 204.5(g)(1) states that evidence of experience “shall” consist of letters from employers.


(2) Whether the organization or establishment has a distinguished reputation. USCIS officers have been instructed that they should keep in mind that the relative size or longevity of an organization or establishment is not in and of  itself a determining factor. Rather, the organization or establishment must be recognized as having a distinguished reputation. Webster’s online dictionary defines distinguished as 1: marked by eminence, distinction, or excellence

<distinguished leadership and 2: befitting an eminent person <a distinguished setting. (See http://www.merriam-webster.com/dictionary/distinguished)

 

Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;


(1) Whether your salary or remuneration is high relative to the compensation paid to others working in the field.


Evidence regarding whether your compensation is high relative to that of others working in the field may take many forms. If you are claiming to meet this criterion, then the burden is on you to provide appropriate evidence.

Examples may include, but are not limited to, geographical or position-appropriate compensation surveys and organizational justifications to pay above the compensation data. Three Web sites that may be helpful in evaluating the evidence provided by the petitioner are:

The Bureau of Labor Statistics (BLS):
http://www.bls.gov/bls/blswage.htm


The Department of Labor’s Career One Stop website: http://www.careeronestop.org/SalariesBenefits/Sal_default.aspx

The Department of Labor’s Office of Foreign Labor Certification Online Wage Library: http://www.flcdatacenter.com
 

Note: Aliens working in different countries should be evaluated based on the wage statistics or comparable evidence in that country, rather than by simply converting the salary to U.S. dollars and then viewing whether that salary would be considered high in the United States.

 

Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.


Have you enjoyed commercial successes in the performing arts.

This criterion focuses on volume of sales and box office receipts as a measure of your commercial success in the performing arts. Therefore, the mere fact that you have recorded and released musical compilations or performed in theatrical, motion picture or television productions would be insufficient, in and of itself, to meet this criterion. The evidence must show that the volume of sales and box office receipts reflect commercial success relative to others involved in similar pursuits in the performing arts.

 

If the standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility

You may still be able to qualify under this visa category if your evidence is different than those listed.

This regulatory provision provides petitioners the opportunity to submit comparable evidence to establish the alien beneficiary's eligibility, if it is determined that the standards described in
8 CFR 204.5(h)(3) do not readily apply to the alien’s occupation. When evaluating such comparable" evidence, consider whether the 8 CFR 204.5(h)(3) criteria are readily applicable to the alien’s occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in that regulation.

General assertions that any of the ten objective criteria described in 8 CFR 204.5(h)(3) do not readily apply to the alien’s occupation are not probative and should be discounted. Similarly, claims that USCIS should accept witness letters as comparable evidence are not persuasive. The petitioner should explain why it has not submitted evidence that would satisfy at least three of the criteria set forth in 8 CFR 204.5(h)(3) as well as why the evidence it has submitted is “comparable” to that required under 8 CFR 204.5(h)(3).

On the other hand, the following are examples of where 8 CFR 204.5(h)(4) might apply.

 (1) An alien beneficiary who is an Olympic coach whose athlete wins an Olympic medal while under the alien’s principal tutelage would likely constitute evidence comparable to that in 8 CFR 204.5(h)(3)(v).

 (2) Election to a national all-star or Olympic team might serve as comparable evidence for evidence of memberships in 8 CFR 204.5(h)(3)(ii).

 

Note: There is no comparable evidence for the one-time achievement of a major, international recognized award.

 

Part One Note: Objectively meeting the regulatory criteria in part one alone does not establish that you in fact meet the requirements for classification as an Alien of Extraordinary Ability under section 203(b)(1)(A) of the INA.

 

Example:

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 part one. However, for the analysis in part two, your participation should be evaluated to determine whether it was indicative of your 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 part one. However, for the analysis in part two, your publications will be evaluated to determine whether they were indicative of your 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.

The issue related to whether you are one of that small percentage who have risen to the very top of the field of endeavor and enjoys sustained national or international acclaim will be addressed and articulated in part two of the analysis, not in part one where the USCIS officer is only required to determine if the evidence objectively meets the regulatory criteria.

 

Part Two Note: Final Merits Determination. Meeting the minimum requirement of providing required initial evidence does not, in itself, establish that you in fact meets the requirements for classification as an alien of extraordinary ability under section 203(b)(1)(A) of the INA. As part of the final merits determination, the quality of the evidence also should be considered, such as whether the judging responsibilities were internal and whether the scholarly articles (if inherent to the occupation) are cited by others in the field.

In Part Two of the analysis in each case, USCIS officers will evaluate the evidence together when considering the petition in its entirety to make a final merits determination of whether or not you, by a preponderance of the evidence, have demonstrated that you have sustained national or international acclaim and that your achievements have been recognized in the field of expertise, indicating that you are one of that small percentage who has risen to the very top of the field of endeavor.


If the USCIS officer determines that you have failed to demonstrate these requirements, the USCIS officer will not merely make general assertions regarding this failure. Rather, the USCIS officer must articulate the specific reasons as to why the USCIS officer concludes that you, by a preponderance of the evidence, have not demonstrated that you are an alien of extraordinary ability under section 203(b)(1)(A) of the INA.

 

 

Sustained National or International Acclaim. Under 8 CFR 204.5(h)(3), a petition for an alien of extraordinary ability must be accompanied by evidence that you have sustained national or international acclaim and that your achievements have been recognized in the field of expertise. In determining whether the beneficiary has enjoyed “sustained" national or international acclaim, bear in mind that such acclaim must be maintained. (According to Black’s Law Dictionary, 1585 (9th Ed, 2009), the definition of sustain is “(1) to support or maintain, especially over a long period of time; 6. To persist in making (an effort) over a long period of time.”) However, the word “sustained” does not imply an age limit on the beneficiary. A beneficiary may be very young in his or her career and still be able to show sustained acclaim. There is also no definitive time frame on what constitutes “sustained.” If you were recognized for a particular achievement, the USCIS officer should determine whether you continue to maintain a comparable level of acclaim in the field of expertise since you were originally afforded that recognition.

 

For further guidance see : http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/i-140-evidence-pm-6002-005-1.pdf

 

Lawyers of Distinction
Avvo - Rate your Lawyer. Get Free Legal Advice.

Contact Us

Hours 9:30am.-6:00pm Mon-Fri

Law Offices of Shawn S. Sedaghat

 

Los Angeles ( Sherman Oaks )

14011 Ventura Blvd

Suite 400

Sherman Oaks, CA 91423

 

Telephone: +1 818 382-3333

Facsimile:   +1 818 827-3466

 

Orange County ( Santa Ana /Irvine )

6 Hutton center Drive 

6th. Floor

Santa Ana, CA 92707

 

Telephone:   1+ 949 272-1199

Facsimile:   1+ 949 272-1198

 

 

Email: Sedaghatlaw@yahoo.com

 

 

Los Angeles (Sherman Oaks) Office

Orange County (Santa Ana) Office

AS SEEN ON TV

Print Print | Sitemap
© Law Offices of Shawn S. Sedaghat