After a brief summer hiatus, I am back blogging (I hope to your ongoing benefit and enjoyment). My last blog introduced the concept of self-sponsorship for permanent residence and discussed the National Interest Waiver (NIW) category. This time we up the ante and look at the EB-1A, Extraordinary Ability visa category, which is also a self-sponsored permanent resident visa option but rightly regarded as highly restrictive.
For the Extraordinary Ability application, the statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(1), while the regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(h). As with the NIW it is not necessarily employer sponsored, but rather employment based, and an applicant must provide evidence that they will continue to work in their area of expertise (and their entry would prospectively benefit the United States).
The basis of the Extraordinary Ability application is that you have to be able to show Sustained National or International Acclaim and be considered to be one of the few at the top of your field of endeavor. Based on this standard, if the applicant has to his or her credit a “major international recognized award”, then they would be deemed to have met the criteria. Dust off your Nobel Prize and come on down, or check your mailbox for your approval!
Unfortunately, I suspect that a few of you reading this blog don’t have a Nobel Prize or other achievement of that magnitude on the mantelpiece just yet. However, don’t despair. Ten criteria await and you need to meet at least three of them (and then be in a position to allow for a review and evaluation of all your evidence to determine that you meet the standard, but we’ll get into that in a moment).
For years it was determined that if an applicant met at least three criteria, then they would be deemed to be Extraordinary (for purposes of this test). The manner of the way the regulations were written and the interpretation of them (by both attorneys and the adjudicators at USCIS) allowed for arguments of how the evidence and documentation fit. For example, it gave you (under certain circumstances) the ability to argue that presentation of scientific work at conferences and symposia, could meet the Presentations category (even though, the full language stated ‘Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases’). In addition, due to having to meet three criteria (to make you Extraordinary so to speak), each category was essentially reviewed and evaluated in the context of “Is the evidence and documentation provided for this category indicative of someone with Extraordinary Ability?” (Please note that these are my words and experience and do not reflect any official standard or policy). So the basis for each individual category was highly restrictive. Since 2010, this has changed. Or rather the manner and concept of adjudication has changed, while the overall standard has (ostensibly) remained the same.
The language of the regulations as written led to a Court case (which for purposes of this blog I will refer to as the Kazarian decision) which set out a two part test, or approach, for purposes of reviewing and adjudicating an EB-1A, Extraordinary Ability application.
In basic terms the issue surrounded the language of the regulations as written and how they were then reviewed, interpreted and ultimately adjudicated. For example, one of the regulatory criteria reads “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media’. In the application that led to the court case the applicant had indeed published in professional or trade journals, but USCIS found that he did not meet those criteria. The question was posed that given the language of the regulation as written, why did the applicant’s publication record not satisfy the requirement? It does not state ‘Publication in Professional or Trade Journals at the Upper Echelons of One’s field’ (again, my words), or other similarly restrictive language. The regulations simply seemed to indicate that if one has published in a professional or trade journal, then one would meet the criterion. On this point the Court essentially agreed. This criterion was an objective standard.
However, how did this play into the overall statutory standard? Can someone (for this blog let’s say a scientist) who has published one or two papers be considered to be at the top of their field of endeavor? What if someone was able to meet three criteria as written, but the evidence that met the three criteria was minimal?These questions essentially lead us to where we are today, which is the world of the post-Kazarian decision. It is currently recognized that certain criteria under the EB-1A standard can be objective. If you can meet the standard/requirement as written then you will meet those criteria. Others however, are more subjective. For example the criterion ‘Original Scientific Contributions of Major Significance’ is, for the most part, an evaluation and review of various factors that can, or cannot as the case may be, determine the overall significance of contributions to a given field. So in the overall context of the EB-1A universe, how do USCIS review and more importantly, adjudicate these applications?
Well, firstly, you have to meet a minimum of three criteria. You must therefore present evidence and documentation to make the argument that you meet at least three distinct criteria (there is the opportunity to present comparable evidence, which should be looked prior to any potential application but for purposes of this discussion we will not delve further into that issue at this time). Once it has been determined that you meet a minimum of three criteria, the second part of the test takes over, and it must then be determined by an evaluation of the evidence as a whole, that the applicant can be considered to be one of the few at the top of their field of endeavor.
The standard, I hope you can see, is highly restrictive. So how does an individual determine whether they are ready to pursue such an application? At Leavy, Frank & Delaney, LLC (www.leavyfrank.com) we have had the opportunity to work with a large number of individuals pursuing this visa category, and it is our belief that prior to entertaining the idea of pursuing an EB-1A, Extraordinary Ability application, an individual should obtain a thorough review and evaluation of their potential application. In my opinion such a review should allow the candidate to see and understand both the potential strengths and weaknesses of their case. A potential applicant for this visa category should go into the process fully informed as to the possibilities, and understand that certain aspects of the adjudication process can have a subjective element. In saying that however, it’s not necessary to have a litany of publications in Nature, Cell, Science, and the New England Journal of Medicine, be on the Editorial Board of twelve journals, have been written up in the Washington Post Science Section or to count your citations in the thousands to be able to apply. In considering an application, you should however, be prepared to bring evidence and documentation to the table which allows you to present a strong case for purposes of overall eligibility for both the regulations and the overall standard of eligibility. And while you don’t need it, yes, a Nobel Prize helps.
Contact me through LinkedIn at http://www.linkedin.com/pub/brendan-delaney/14/581/23b