First Preference – Immigrants of Extraordinary Ability (EB-1 Visas)

Posted on: September 21st, 2012
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The first employment based immigration preference category covers “priority workers.” Though the regulations do not explicitly require it, USCIS has traditionally expected applicants to demonstrate they will benefit the country prospectively. These are workers whose skills and talents are important to the US – the “best and brightest.” 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.

 

Who is included in the EB-1 Category?

The EB-1 category covers three groups:

  • Immigrants of Extraordinary Ability
  • Outstanding Professors and Researchers
  • International Managers and Executives

 

One of the most attractive aspects of the EB-1 category is that the labor certification requirement does not apply. This makes the time spent processing an EB-1 application much shorter than for categories that do require a labor certification.

 

Who is considered an immigrant of extraordinary ability?

This subcategory covers immigrants possessing extraordinary ability in the sciences, arts, education, business or athletics. The extraordinary ability subcategory does not require a specific job offer, so long as the immigrant states that they will continue to work in the field of their extraordinary ability in the United States. This means that the immigrant may file a petition on their own behalf, rather than having an employer file for them.

 

How is “extraordinary ability” defined?

Extraordinary ability as a concept in immigration law was introduced 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.

 

How can extraordinary ability be demonstrated?

There are two ways to demonstrate extraordinary ability. First, the immigrant can show that they have received a major, internationally recognized award such as a Nobel Prize or an Academy Award. The second and more common method is for the immigrant to show three of the following ten types of evidence:

  • Receipt of lesser national or international 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 immigrant 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 immigrant’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

 

Realizing that these 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.

Note that in recent years, there has been a great deal of litigation over whether it is enough simply to meet three categories of evidence. In the Ninth Circuit case of Kazarian, the USCIS was successful in arguing that there are two steps to proving extraordinary ability. First, the applicant must present evidence to satisfy the categories noted above. And then a USCIS examiner must conduct a “final merits analysis” and review the evidence in totality to see if the applicant is truly extraordinary. Not surprisingly, the request for evidence and denial rates for EB-1 have increased substantially over the last few years.

 

How tough is it to meet the standards of evidence?

While there are, of course, examples where people with relatively weak credentials successfully applied for EB-1 green cards, more often USCIS denies cases for deserving applicants. In many cases, they will discount the evidence presented so that successful applicants will really need to present evidence in many more categories than just the minimum three.

A safe assumption to make is that USCIS will not take any assertions by the applicant at face value and every accomplishment cited should be backed up with evidence. Furthermore, USCIS will assume that publications are not prestigious, associations do not require outstanding accomplishments of their members, awards are not highly important in the field, etc. In short, it is not enough to present evidence in at least three categories, but also to document why each one of those forms of evidence independently suggest one has extraordinary ability in the field.

Also, support letters are often the most important form of evidence so particular attention should be paid to them. Get as many as possible – many lawyers recommend at least ten – and make sure that they represent both people who know your work directly as well as letters from people in the field who do not work with you and can be viewed as more independent.

 

When is the best time for someone to apply for EB-1 status?

That’s always a tough call to make. On the one hand, applying early can be important for someone like an athlete who has a limited career span and is always at risk of a career-ending injury. On the other hand, many applicants make the mistake of pursuing the EB-1 before they have really accomplished enough to meet the EB-1 standards. For example, a student will likely have a tougher time than one who has been out if the field for some time.

 

Does one need to have a job to apply for an EB-1?

Technically, the answer is no. EB-1s are self-petitioned and are not dependent on an employer. Nevertheless, an applicant should show that they are going to continue working in the field in the US and it helps enormously to have work or projects lined up in the US.