The ABCs of Immigration: First Preference Employment-Based Immigration for Aliens of Extraordinary Ability

Without exception, the most popular and the most appropriate immigrant visa category (greencard category) for artists, athletes and entertainers is the EB-1. The first employment based immigration preference category covers “priority workers.” These are workers whose skills and talents are important to the US – the “best and brightest.” More specifically, in the case of an artist or an athlete, the EB-1 category is designated for those who possess “extraordinary ability” in their respective field.

One of the most attractive aspects of the EB-1 category is that the cumbersome labor certification requirement does not apply. The United States Citizenship and Immigration Service (USCIS) will process an EB-1 petition solely on the merits of the individual artist, athlete or entertainer, bypassing a US Department of Labor ( DOL ) certification that there are ‘no qualified’ domestic workers for a particular position. This makes the time spent processing an EB-1 application much shorter than for categories that do require a labor certification.

Significantly for artists, athletes and entertainers, the extraordinary ability subcategory does not require a specific job offer, so long as the applicant states that they will continue to work in the field of their extraordinary ability in the US . This means that the artist may file a petition on their own behalf, rather than having an employer file for them.

The annual cap on EB-1 visas is 40,000, plus any visas left over from the fourth and fifth employment based preference categories (special immigrants and immigrant investors). This is more visas than are ordinarily used in the category, so there are no backlogs in visa issuance in this category.

Extraordinary ability is a relatively new concept in immigration law, being introduced only in 1990. USCIS regulations define extraordinary ability as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.” There are two ways to demonstrate extraordinary ability. First, the alien can show that they have received a major, intern ationally recognized award such as a Nobel Prize or an Academy Award. The second, and more common method is for the alien to demonstrate three of the following ten types of evidence:

¨ · Receipt of lesser national or intern ational prizes or awards for excellence in their field of endeavor

¨ · Membership in associations in the field of endeavor that require outstanding achievements of their members

¨ · Published material about the alien and his work in professional journals, trade publications, or the major media

¨ · Participation, either in a group or alone, as a judge of others in the same or a similar field

¨ · Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor

¨ · Authorship of scholarly articles in the field, published in professional journals or the major media

¨ · Display of the alien’s work at artistic exhibitions or showcases in more than one country

¨ · Performance in a lead, starring, or critical role for organizations with a distinguished reputation

¨ · Commanding a high salary compared to others in the field

¨ · Commercial success in the performing arts, as shown by box office receipts and sales

Clearly, measuring the ability of any artist is, by its very nature, highly subjective. In recognizing this reality, the Service devised the above set of objective criteria as a means of satisfying this lofty task. Realizing that these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, the USCIS has also included a catch-all category allowing submission of other comparable evidence. In other words, specific disciplines may be of such a nature that an artist’s ability requires standards of evaluation more specific than those enumerated above.

While not an official category of evidence, another way to demonstrate extraordinary ability is through comparison with an alien already granted that status. This is possible because USCIS regulations make comparison with others in the field one of the standards for judging extraordinary ability. Therefore, while it may be difficult to find out how the USCIS has treated someone with similar credentials, it is highly relevant evidence.

One final word of caution should be made of the type of evidence submitted to the USCIS. Many types of evidence that may technically fit within USCIS regulations are not accorded much weight by the agency. For example, publication by a vanity press, a simple citation to the artist’s work without evaluation, or a single listing in an index are less influential than more objective and analytical evidence (such as a critics review). Other types of evidence are considered highly persuasive, including publication in peer-reviewed journals. Finally, some of the most persuasive types of evidence are letters from peers in the alien’s field attesting to the alien’s important contributions and ability.

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