Section 203(b)(l)(A) of the Immigration and Nationality Act (INA) allots immigrant visas to foreign nationals with extraordinary ability under the EB1A visa category. A foreign national can apply for an EB1A visa by showing that he or she has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim; and whose achievements have been recognized in the field through extensive documentation. Further, the petitioner must also seek to enter the U.S. to continue work in the area of extraordinary ability, and his or her entry will substantially benefit prospectively the United States.
To prove extraordinary ability, a petitioner may provide evidence that he or she has won a major, internationally recognized award. Without evidence of such an award, a petitioner must provide evidence that he or she meets at least three of the ten categories listed in the regulations (e.g., smaller or national awards, published material about the petitioner, scholarly articles, unusually high salary, etc.). After a petitioner has met these initial requirements, USCIS will then consider the totality of the material provided in a "final merits determination" to assess whether the record shows sustained national or international acclaim and demonstrates that the individual is among the small percentage at the very top of the field of endeavor. This new legal framework was pronounced by the Ninth Circuit Court of Appeal in Kazarian v. USCIS in 2010.
Extraordinary ability alien petitions are known to be difficult to prove. After the Kazarian decision, the adjudication standard seems to be even higher. The following are examples of some common reasons for rejection of EB1A petitions:
Lesser awards and prizes: USCIS tends to reject such evidence by arguing that they are not nationally or internationally known. However, by definition, these are not supposed to be major national or international prizes. Petitioners are advised to provide as much background information as possible regarding awards and prizes.
Published materials about petitioner: USCIS requires independent evidence about the publication cited. Self-produced information from the publication itself, such as circulation statistics, is generally rejected. Instead, USCIS expects background information from an official or independent source. For certain less popular publications, such information may be difficult to meet, as independent statistics are often unavailable.
Original contributions to the field: Original scientific or technological contributions can be proved by items such as patents, copyrights, scientific research papers, etc. However, artistic or business-related contributions are more difficult to prove. Sometimes, recommendation letters by experts in the field can be used as supporting evidence. If such letters are used, it is important that the authors must explain clearly the original contributions made by the petitioner and provide specific examples. Mere assertions that the petitioner is an excellent and hardworking professional are frequently rejected by USCIS. For example, in a recent appeal by an artist, AAO of the USCIS rejected an expert's assertion that the petitioner's works "definitely display his ability to become a successful artist." USCIS expected proof that his artwork already qualifies as a contribution of major significance in the field.
Judging work of others: This criterion has also become more difficult to prove. For example, in another decision, USCIS rejected a EB1A petition by a mathematical researcher, who participated in reviewing five scientific papers for three professional journals and two conferences. USCIS-AAO did not believe that the petitioner received wide attention from the field based on his work reviewing journal and conference papers. According to AAO, the petitioner failed to provide evidence that sets him apart from others in his field. Such evidence may include a "consistent history of completing a substantial number of review requests relative to others, served in editorial positions for distinguished journals or publications."
Lack of sustained national or international acclaim: Some petitioners had very prominent achievements at a certain stage of their career. They may have won some awards or made an important invention. However, it does not mean that their extraordinary ability petition will be approved. If they cannot prove that they have continuously been recognized until the time the EB1A petition is filed, USCIS will reject their petition for failing to prove "sustained" national or international acclaim. This issue is most common among retired professionals who have stopped actively working in their field.
Mixing up the two-part Kazarian analysis: Kazarian requires the petitioner to first establish that he or she meets at least three of the ten listed criteria, and then a final merits determination will be conducted to determine if the petitioner has sustained national or international acclaim. As the above examples demonstrate, USCIS seems to have often applied the two-part analysis in each of the criteria and reject them individually. For example, as explained above, the criterion regarding participation as a judge of the work of others does not require comparison of judging experience with others. USCIS, however, has rejected its use without evidence that petitioner's participation as a judge is superior to his or her peers. USCIS' position is that it is not enough for petitioner to meet the plain language requirement of the individual criterion, he or she must also provide evidence of extraordinary ability for each criterion. Such practice seems to contradict the purpose of Kazarian, which was to shift the evaluation of extraordinary ability until the final merits determination.
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