EB1-A (Extraordinary Ability)
Eb1-a (Alien Of Extraordinary Ability)
EB1-A (Alien of Extraordinary Ability) is a subgroup of first preference 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, but they must be entering the country to continue to work in their chosen field, and they must substantially benefit prospectively in the United States. Moreover, the petitioner 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.
Advantages of the EB1-A Visa
There are many advantages to them employment-based 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 s/he 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 acclaims for his/her achievements;
- The foreign person is seeking to enter the United States to continue to work in the field or endeavor that is the subject of the acclaim; and
- The presence of the foreign person and his/her activity will benefit the United States
Definitions and Evidence of Extraordinary Ability
Federal regulations define extraordinary ability as a level of expertise indicating the individual is one of a small percentage who has risen to the very top of a particular field in the sciences, arts, education, business, or athletics. The law requires that such person received national or international acclaim. National or international acclaims may be shown by receipt of a major internationally recognized award (e.g. Nobel Prize or Academy Award).
In the alternative, immigration law requires that the petitioner must provide at least three of the following types of evidence:
- Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field or endeavor;
- Membership in an association that requires outstanding achievement as a condition of membership in the field for which the classification is sought;
- Published material about the foreign person or his or her work in professional trade journals, or major media publications (and their translations if in a foreign language);
- Foreign national’s participation on a panel or individually, as a judge of the work of others in the same or a related field;
- Evidence of original contributions, usually through publication of major significance in the foreign national’s field of science, scholastic, artistic, or athletic;
- Authorship of scholarly articles in the field, in professional journals, or other major media (national newspapers, magazines, etc.);
- Display of the foreign national’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 than is usual in the field;
- Commercial success in the performing arts as shown by box office receipts or sales records, cassettes, compact disk, or video sales; or
- Other comparable evidence
“Very top of the Endeavor”
The actual field of the alien’s endeavor must be defined prior to the determination of whether the foreign person 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.
In order to provide evidence that the applicant is “one of the small percentage who has risen to the very top” of his or her field is to present evidence that provides a basis for comparison between the foreign person and those persons who are average or typical in the field. For example, if the foreign national 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.
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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