EB1A Criteria: What USCIS is Really Looking For

As an immigration attorney, I often see extremely talented, extraordinary individuals at a loss of how to get a green card. Often times, these clients do not have the traditional employer or family member inline to sponsor them. Fortunately, for those at the top of their field, neither a family member nor employer is needed if you qualify for the EB1A visa. Through the EB1A green card, you are eligible to self-petition. This means that you can apply for yourself without an employer sponsoring you.

In this guide, I'm going to explain important details regarding the EB1A criteria and what USCIS looks for when evaluating an EB1A petition. If you have any questions, feel free to email me directly at Michael@AshooriLaw.com. I'm very responsive via email and I would be happy to help you.

Introduction:

1. What is the EB1A: Extraordinary Ability category?

2. What are the EB1A requirements?

3. What are the best types of evidence to provide in order to get an approval?

4. What are some additional considerations, besides the 3 of 10 enumerated categories?

5. What forms do I need to file an EB1A?

6. Conclusion

1. What is the EB1A: Extraordinary Ability category?

Is it true, could I get a green card without an employer or job offer?

Traditionally, obtaining an employment-based Green Card requires: 1) an employer to file an immigrant petition on your behalf; and 2) a job offer. Although, for those who are leaders in their field, they need not have either of these things. Under the EB1A category you can self-petition for a Green Card. Furthermore, there is no need for the lengthy PERM/labor certificate process (which can be upwards to a year and a half, in some situations). If you are qualified, it can be one of the fastest ways to permanent residency, as premium processing is available under this category.

2. What are the EB1A requirements?

Requirements: How to Build a Strong EB1A Case

The EB1A is reserved for those in the following categories: arts, sciences, athletics, education, or business. Here, you need to prove either a major internationally recognized award (this would include a Nobel Price, Pulitzer, etc.) or meet at least three of the ten statutorily enumerated criteria.

Many of my clients meet at least three of the ten criteria. Yet, they are not knowledgeable of how to build their case in order to demonstrate their eligibility. So, to help bridge this gap, I want to walk you through the best evidences necessary for each of the ten criteria points under the EB1A.

3. What are the best types of evidence to provide in order to get an approval?

The Best Evidence for Building an EB1A Matter

Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;

• Keep in mind that student awards are not given much weight;

• Instead you should use printouts from the awarding committee’s websites or publications, enumerating the criteria for recipients, information regarding the number of applicants/entries the year you won, information regarding the awarding committee;

• Any press from major publications covering the eligibility for the award and your award receipt;

• Here, evidence could include: photos of your award (where your name is clearly legible), congratulatory letter from the organization, scan of award certificate, confirmation from awarding committee.

Evidence of the foreign national’s membership in associations in the field which demand outstanding achievement of their members;

• Here, you can submit a printout from the online database listing showing your membership, render a copy of your membership card, or obtain a confirmation letter from the association regarding your membership;

• A letter from the organization regarding the membership criteria can also be submitted here. Additionally, any online screenshots demonstrating the criteria for membership and lists of its members who are esteemed leaders in your field;

• Lastly, submit any publications covering the selectivity of the organization’s membership.

Evidence of published material about the foreign national in professional or major trade publications or other major media;

• Here, you will need to provide any press materials about you and your accomplishments. These things can include interviews, article printouts, radio or television appearances, etc.

• You’ll also want to provide evidence of the reputability of the press source.

Evidence that the foreign national has been asked to judge the work of others, either individually or on a panel;

• Here, you can provide any emails or letters inviting you to serve as the judge of others and subsequent confirmation that you actually rendered the service as a judge (this can come in the form of a thank you email);

• Other evidence may include, screenshots or printouts from the press or internet listing you as a member of the jury or judge panel;

• Lastly, you can add screenshots or printouts from the organization that you served as a judge on, enumerating the criteria for the judge’s qualifications.

Evidence of the foreign national’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;

• Here, you can submit testimony from leading professionals in your field. This can come in the form of reference letters to demonstrate your unique and original contributions. Note that independent references (meaning they have not worked with you and are unaffiliated with you) are strongest.

• You can also use certified patents (pending patents are not probative). The best evidence is any use of your work being utilized by others in your field – these can come in the form of contracts to use your patent or press about your unique inventions.

Evidence of the foreign national’s authorship of scholarly articles in professional or major trade publications or other major media;

• Here, you can submit any publications that include your name and accomplishments;

• Evidence of the circulation rate, ranking of the website your work was published. Here, think of whatever type of evidence you may have available to prove the distinguished nature of the publication.

Evidence the foreign national’s work having been displayed at artistic exhibitions or showcases;

• Here, you can submit evidence of brochures, posters, advertisements, or photos of the exhibits, but assure that your name is clearly highlighted;

• You can also submit any evidence to demonstrate field press or printouts from the organization/gallery websites, discussing the exhibition including information such as who many people attended, the reception the showcase got, and the prestige of the showcasing.

Evidence of the foreign national’s performance of a leading or critical role in distinguished organizations;

• Here, you can show any evidence of employment as an executive, manager, supervisor, or as a chair from any current or past positions – this evidence can come in the form of a letter attesting to your critical and leading role;

• Alternatively, you can submit, organizational charts to demonstrate your notable rank in the group’s hierarchy;

• Evidence of any internal awards received that are typically reserved for the organization’s leaders;

• Independent articles or internal press disclosing the distinguished nature of the organization – these can include awards received by the entity, size of the organization, its net worth or endowment amount, and profiles of other internal leaders.

Evidence that the foreign national commands a high salary or other significantly high remuneration in relation to others in the field;

• Here, you can submit copies of tax documents, recent paycheck stubs, or contracts discussing pay/renumeration rendered.

Evidence of the foreign national’s commercial successes in the performing arts.

• Here, you can submit any evidence of relevant box office, record sales, TV ratings, audience viewing statistics;

• Press discussing the commercial success of your project; or

• Tax documents or pay transfer evidence of royalties and revenue for performance.

4. What are some additional considerations, besides the 3 of 10 enumerated categories?

Additional Considerations After You Have Met 3 of the 10 Criteria: Kazarian Policy Memorandum

In 2010, the Ninth Circuit Court of Appeals rendered an important decision. After this, the EB1A landscape was changed forever. This Ninth Circuit case is known as Kazarian v. USCIS. After this decision was released, USCIS issued a “policy memorandum” informing adjudicating officers of detailed guidelines for evaluating EB1A matters.

The memo, known as the “Kazarian Policy Memorandum” had significantly altered and elevated the bar to establish “extraordinariness.” Here, USCIS enumerated that upon establishing three of the ten enumerated criteria, the applicant must also prove and submit documented evidence that supports:

(1) The foreign national can demonstrate such esteemed levels of expertise that they are consequentially of the top small percentage at the very top of their field;

(2) That they have sustained international or national acclaim so that their achievements have been recognized in the field of their expertise;

(3) That they intend to continue working in their field; and

(4) That their entry will impart a substantial benefit to the United States.

These last two prongs (numbers 3 and 4) require the applicant to show USCIS why the traditional time intensive PERM Labor Certification process and job-offer should be skipped. Here, you should focus that on future job prospects, unique and exciting projects you may participate in, prospective funding you may receive – and how all of this is in your immediate timeline. That way, you will be able to prove that the US government should not wait to have you in become a resident of the US.

5. What forms do I need to file an EB1A?

Similarly, to any employment based green card petition, you must file a form I-140 along with the required fees. Keep in mind that USCIS updates their fees and forms regularly, so you want to make sure you are paying and using the latest editions.

Pending on where you were born (country of chargeability) you may be able to submit an I-485 Adjustment of Status application along with your I-140 petition. To know, check the current month’s visa bulletin, as it is updated two weeks before the month ends. There, you will be able to see that your priority date based on your country of chargeability is current. You will know it is current when it says “C” under the “First Preference” section of the chart.  The adjustment of status application allows for those who are presently in lawful status, physically inside the United States, to apply for a green card. If you are not inside the US, you can apply for an immigrant visa (consequently, a US green card), abroad at the US Consulate, through the process known as consular processing. For this process, you’ll need to fill out a DS-260 with the Department of State.

6. Conclusion

Experienced immigration practitioners will often be shocked by the subjective deliberation given to EB1A visas. Therefore, it is important that you provide strong documentation to build an undisputable argument that you are in fact extraordinary. Fortunately, if your case is questioned, you will typically be given a “Request for Evidence” - also known as a “RFE” to allow you to strengthen the merits of your case, in the areas questioned.

If you have any questions about how you may qualify for a Green Card through the EB1A process or if you need help evaluating any of the complexities in your case, please feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and I would be happy to help you.