EB-1A: Extraordinary Ability Alien Petitions

Introduction
The EB-1A employment-based immigrant classification is for foreign nationals with extraordinary ability in the sciences, arts, education, business or athletics. Foreign nationals seeking EB-1A classification may file an immigrant petition on their own behalf so long as they demonstrate that they will continue to work in their field of expertise while in the United States and that this work will substantially benefit prospectively the United States. As such, an extraordinary ability alien does not require a specific job offer or PERM Labor Certification from a United States employer in order to qualify for this immigrant visa category.

Our firm successfully represented clients in cases of Extraordinary Ability Aliens, examples of which can be viewed at our Extraordinary Ability Aliens Success Stories page.

Defining “Extraordinary Ability Aliens”
An extraordinary ability alien is someone who possesses 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. The petitioning foreign national must submit evidence demonstrating that the foreign national “has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise” in order to qualify as an alien extraordinary ability. As such, the EB-1A classification is reserved for those foreign nationals who can demonstrate that they are at the very top of their field worldwide.

Demonstrating Extraordinary Ability

A Receipt of Major, Internationally Recognized Award
There are two ways that foreign nationals can demonstrate extraordinary ability in the field of expertise. First, foreign nationals can satisfy the Regulations’ definition by submitting evidence of receipt of a major, internationally recognized award, such as the Nobel Prize. USCIS is charged with determining whether an award is “major” and “internationally recognized.” USCIS considers the prestige of the award within the foreign national’s field of expertise and whether the award’s announcement and the news coverage surrounding that announcement where local, national, or international in making this determination.

The second, and more common method, is for the foreign national to document three of the following ten types of evidence:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field of endeavor which require outstanding achievements of their members as judged by recognized national or international experts
  • Published material about the foreign national and his/her work in professional journals, major trade publications, or major media relating to the work of the foreign national in the field
  • Participation, either individually or on a panel, as a judge of others in the same or an allied field
  • Original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field of endeavor
  • Authorship of scholarly articles in the field, published in professional or major trade publications or major media
  • Display of the foreign national’s work at artistic exhibitions or showcases
  • Performance in a leading or critical role for organizations or establishments that have a distinguished reputation
  • Commanding a high salary/remuneration compared to others in the field
  • Commercial success in the performing arts as shown by box office receipts or music/video sales

As these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, there is also a catch-all category allowing submission of other comparable evidence.

In addition to meeting three out of the ten requirements with regard to the above categories of evidence, per the Federal Court Case Kazarian v. USCIS, it is necessary for the foreign national to show by a preponderance of the evidence that he she/is among the small percentage at the very top of the field.

USCIS thus conducts a two-part test to determine whether someone is an individual of extraordinary ability:

• First, USCIS determines whether the individual has submitted evidence to show that he/she:

– Has received a one-time achievement (a major internationally recognized award); or,
– Qualifies under at least three of the ten criteria required for this classification.

• Second, if the individual establishes receipt of a one time achievement (a major internationally recognized award), or meets at least three of the other criteria, USCIS then determines whether the individual has submitted evidence demonstrating
that he/she:

– Has sustained national or international acclaim. In determining whether the individual has enjoyed “sustained” national or international acclaim, such acclaim must be maintained. In another words, it is not acceptable for an individual to have achieved extraordinary ability in the past but then failed to maintain a comparable level of acclaim thereafter and,

– Has achievements that have been recognized in the field of expertise, indicating that the individual is one of that small percentage who has risen to the very top of the field of endeavor.

The documentary evidence needed to satisfy each category is stringent. The preparation of evidence is a careful process. Submitting proper evidence is necessary to convince USCIS that the foreign national meets the requirements for approval as an Extraordinary Ability Alien. Submitting the wrong kind of evidence, or stretching to meet a category in which the foreign national is clearly not qualified, weakens the overall argument that the foreign national meets the requirements for approval as an Extraordinary Ability Alien.

Marco Pignone