EB1-A is an employment-based immigration visa that is offered to foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics. According to the Immigration and Nationality Act, such persons are not required to have a prospective employer in the United States. They must be entering the country to continue to work in their chosen field and substantially benefit the United States. Moreover, the petitioner of an EB1-A visa has to show that the foreign person sustained national or international acclaim with recognized achievements, which is the crux of the application and the most difficult to prove. Whether you are a petitioner or the talent, you should have quality legal support through the process. Contact The Law Office of Neal Richardson Datta for a consultation to discuss your immigration needs and get the caliber of services you deserve.
Advantages of the EB1-A Visa
There are many advantages to the EB1-A visa. First, a specific job offer is not required as long as the foreign national is entering the United States to continue working in the field in which he or she has extraordinary ability. Thus, self-petition is allowed. Second, a labor certification is not required. Third, visas for EB1-A are current, meaning that visas remain immediately available for all countries in the first employment-based (EB-1) preference category.
In order to be qualified for an EB1-A visa, the petitioner must show:
- The foreign person has sustained national or international acclaim for his or her work=
- The foreign person will continue to work in the field or endeavor that is the subject of the acclaim when in the United States
- The presence of the foreign person will benefit the United States
Evidence of extraordinary ability
In the alternative, immigration law requires that the petitioner must provide at least three of the following types of evidence:
- Receipt of a lesser-known nationally or internationally prizes or awards for excellence in the field or endeavor
- Membership in an association requiring exceptional accomplishment as a condition of membership in one’s field
- Published material regarding the applicant in professional trade journals or major media publications
- Participation on a panel or as a judge of the work of others in the same or a related field
- Evidence of original contributions to publications of major significance in the foreign national’s field of science, scholastic, artistic, or athletics
- Authorship of scholarly articles pertaining to one’s field, either in professional journals or major media outlets
- Display of the applicant’s work at significant exhibitions
- Performance in a significant role for organizations or establishments that have a distinguished reputation
- Receipt of a higher salary or remuneration for one’s the field
- Commercial success in the performing arts supported by box office receipts or sales records, cassettes, compact disk, or video sales
- Other comparable evidence
“Very top of the Endeavor”
The actual field of the applicant’s endeavor must be defined prior to the determination of whether he or she has extraordinary ability in that field. It is important to narrowly define the field because it is easier to argue that the foreign person has risen to the top of a narrowly defined field.
It is important to present evidence that provides a basis for comparison between the applicant and those persons who are average or typical in the field. For example, if the applicant is in a field in which publication of scholarly articles is standard, evidence that the applicant’s articles have appeared in the most prestigious journals in the field, have been the subject of peer review in such journals, or have been widely cited in other scholarly articles may be essential.
Comparing to Approved Cases
USCIS has a tendency to compare other applications to previously approved cases in the same field or endeavor to determine the standard for awarding extraordinary ability status. Therefore, the way in which USCIS has treated other applicants in the field with comparable qualifications is highly relevant to an extraordinary ability application.
Two-Part Approach Taken by USCIS Adjudicators
In 2010, the United States Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under the classification of EB1-A. In Kazarian v. U.S. Citizenship and Immigration Services, a two-part test is advanced to determine whether an alien qualifies for an EB1-A visa. First, the court states that the types of evidence that is provided must be counted. The second prong is a final merits determination.
Following the Kazarian case, the USCIS issued a memorandum in August 2010 that mandates a two-step analysis for EB1-A Aliens of Extraordinary ability and EB1-B Outstanding Professors and Researchers, and EB-2 Foreign Nationals of Exceptional Ability.
The first part, as outlined by the USCIS, requires the adjudicator to calculate the prongs satisfied. The adjudicator must determine whether a beneficiary has submitted evidence to meet the criteria for the immigration classification s/he is seeking as required by the USCIS rules. For example, a petition for an EB1-A extraordinary ability alien, must include evidence of receipt of a major internally recognized award, such as a Nobel Prize, or at least three types of evidence from among the 10 types listed in the rules. Adjudicators look at evidence provided to determine how many evidentiary prongs have been satisfied. After deciding at least three evidentiary prongs or one major evidentiary prong has been satisfied, the adjudicator may proceed to the second step.
The second prong is the totality test. The adjudicator must determine whether, considering all of the submitted evidence, in totality the foreign national meets the requisite level of expertise for the category. In this phase, the adjudicator determines if, cumulatively, it can be shown by a preponderance of the evidence that the I-140 beneficiary satisfies the general definition of the category. For example, an adjudicator for an EB1-A case has to determine, given the totality of the circumstances, whether the applicant is at the very top of his or her field of endeavor. In making this determination, the quality of the evidence, such as, whether the judging responsibilities were internal and whether the scholarly articles citied, is an appropriate consideration in the final merits determination.
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Schedule your appointment with The Law Office of Neal Richardson Datta. During your first visit, our firm will listen to your situation and create a strategy that best suits your needs. Every situation is unique, and every strategy needs to be tailored to each client. If you are interested in knowing more about our firm or to schedule a consultation with us, contact The Law Office of Neal Richardson Datta.