The EB-1A Visa is reserved for “Aliens with Extraordinary Ability”. Eligible applicants for the EB-1A visa include foreign nationals who are nationally or internationally recognized as experts in their field. The USCIS utilizes a two-tier system to screen applications. Applicants must establish that they have been recognized on the national or international level for successes in their field. Applicants must prove their expertise and acclaim by providing a variety of supporting documentation.
This documentation includes proof of awards, publications, artistic exhibitions, active participation in organizations and major contributions in their respective field. Currently, USCIS officials exert more discretionary authority during the evaluation process. They are able to discern whether supporting documentation satisfies USCIS requirements an that the applicant is indeed an “Alien with Extraordinary Ability.” Due to the arbitrary nature of this process, it is highly recommended that applicants utilize a qualified immigration attorney to increase the likelihood of their petition being accepted.
Requirements for Alien with Extraordinary Ability (EB-1A)
The USCIS has traditionally avoided establishing guidelines for how they evaluate EB-1A cases. The USCIS Officer assigned to the case typically reviews the individual documentation against the EB-1As legal criteria. This documentation is expected to show that the petitioning alien not only is among an elite few at the top of their field, but that they also have national or international acclaim.
USCIS Two-Tier Approach
USCIS officials use a two-tier evaluation process to screen applicants. The First Tier evaluates any supporting documentation as outlined below. Once the candidates successfully satisfy the criteria of the First Tier, the assigned USCIS Officer will review the documentation to confirm if the petitioner does indeed fit the criteria of being an “Alien with Extraordinary Ability.”
First Tier – Satisfying Documentation Requirements
The first tier requires that applicants prove their extraordinary abilities by satisfying one of two different types of documentation requirements. The first option allows an applicant to provide documentation of a one-time, significant international award, such as the Nobel Prize or an Olympic Medal. However, if the applicant is unable to provide the first type of documentation, there is a second option.
The second option allows for applicants without a significant international award to provide supporting documentation which asserts that they will continue their beneficial work upon entering the U.S. The second documentation requires the applicant to provide at least 3 of the following 10 types of documentation:
- Proof of public display of artistic exhibitions or showcases in the field.
- Proof of playing a leading or critical role in distinguished organizations.
- Proof of a high salary or higher salary compared to others in their field.
- Proof of a lesser national or international award for excellence in their field.
- Proof of scholarly authorship of articles in professional or major trade publications.
- Proof of published work in professional or major trade publications related to their field.
- Proof of participation as a judge, or member of a panel, that evaluated the work of others in the same or related field.
- Proof of major contributions in their field. This may include artistic, athletic, business, scientific or scholarly contributions.
- Proof of financial success in the performing arts. This may include CD, DVD or box office sales. This criteria only applies to singers, musicians, movie stars and performing artists.
If there are 3 or less document types submitted, the application will most likely not be approved. However, if the applicant provides documentation of at least three types of documentation, the application will proceed to the second tier.
Second Tier – Final Merits Determination
Once the applicant meets the documentation requirements of the First Tier, their entire application will be reviewed by an assigned USCIS Officer. The purpose of this Second Tier review is to compare the documentation of high expertise against the classification of an “Alien with Extraordinary Ability.” This being said, the USCIS Officer has more discretionary authority to deny or approve the application, even if the applicant has provided the minimum of three types of supporting documentation.
Once combined, the documentation must establish that the alien satisfied three requirements. First, that they are nationally or internationally recognized as an expert in their field. Second, that this acclaim has been maintained until the present time. Third, that their level of expertise is limited to a small percentage of top level experts.
EB-1A Evaluation Process Becoming More Difficult
The USCIS evaluation process is designed so that the combined documentation itself is compared against the legal criteria of having an “extraordinary ability.” However, because of the discretionary powers of USCIS officers, it can be argued that EB-1A petition approvals are more difficult to obtain when compared to other types of employment-based (EB) visas. Despite USCIS’s restructuring of the review process, the official adjudication policies have not changed the actual legal criteria and the Statutory Process by the Court.
The Necessity of Professional Legal Assistance
The subjective nature of the discretionary authority held by USCIS personnel can negatively affect applicants. Building a successful EB-1A application has two major elements. The first is satisfying complex documentation guidelines for each specific type of documentation. The second is the ability to present the application to USCIS in a compelling manner so that USCIS personnel award the title of “Alien with Extraordinary Ability”.
We Are Ready to Assist You
Because of the legal complexities of the EB-1A application process, it is highly recommended that applicants retain a qualified immigration attorney. KPPB Law has extensive experience in both constructing initial EB-1A applications and responding to USCIS personnel should any issues arise. Our comprehensive approach eliminates encourages the highest chances of success through properly presenting applications in the most compelling manner. Call our offices or contact us online to schedule an initial consultation.