A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Tuesday, June 7, 2022

Using Comparable Evidence to Support Extraordinary Ability Green Card Applications

The Immigration and Nationality Act (INA) allocates immigrant visa numbers for persons of “extraordinary ability” under the first employment-based preference (EB-1A) visa category.  EB-1A applicants are exempt from obtaining a labor application and may file a self-petition without sponsorship of an employer.  Additionally, unlike EB-2 and EB-3 visa categories, EB-1 visas are usually current and available, representing a much quicker way for the qualified foreign nationals to obtain U.S. permanent resident status. 

The EB-1A extraordinary green card is reserved for the small percentage of individuals who have risen to the very top of their field. Hence, the evidentiary standard for proving EB-1A petitions is extremely high.  The petitioner may prove extraordinary ability with a one-time achievement, i.e., a major international award such as the Pulitzer Prize or an Academy Award. 

Without such an achievement, the petitioner must meet at least 3 of the 10 listed criteria in the regulations, including receipt of lesser national or international awards; membership in associations that require outstanding achievements; published materials about the petitioner or her work in major media; original contributions in the field of major significance; authorship of scholarly articles; leading or critical role in a distinguished organization; display of work in artistic exhibition; command of a high salary; commercial success; etc.

The 10 categories of evidence listed in the regulation were drafted mostly for some traditional professions (e.g., cancer researchers, medical professionals, physicists, chemists, scientists, performing artists, etc.). But the extraordinary ability green card is not only granted to scientists and researchers.  Persons who have exceptional achievements in business, arts, or athletics may also qualify.  Oftentimes, these applicants do not have the exact type of evidence listed in the regulations.   In this situation, the regulations allow the petitioner to submit comparable evidence to prove extraordinary ability.  

For example, an Olympic coach has trained an athlete who has won an Olympic medal. The coach may file a petition arguing that the success of this athlete is attributable to his training. However, the coach does not have an Olympic medal. In this case, the athlete's Olympic medal can be submitted as comparable evidence, since there are no major awards given to coaches.   

For a musician who has performed in a concert, she may argue that her performance is comparable to a visual artist's (e.g., painter, sculptor) display of work in an artistic exhibition. A piece of music cannot be displayed like a painting, but the audience's listening and admiration of the music represents a another way of admiration. Hence, the concert performance can be submitted as comparable evidence. 

For a software engineer who has developed an application that has been sold millions of copies, he may argue that the high number of sales constitutes commercial success, similar to box office success of a movie. Similarly, a bestselling author may argue that the excellent sales of her book is comparable to the commercial success of a performing artist. 

Use of comparable evidence can be extremely useful in supporting EB-1A extraordinary ability petitions, especially for petitioners with a non-scientific background such as software engineers, business professionals, entrepreneurs, horse breeders, architects, chefs, journalists, educators, etc.  

Finally, it is important to understand that, meeting 3 of the 10 criteria does not result in approval of one's petition.  After the pivotal case of Kazarian vs. USCIS in 2010, USCIS implemented new guidance for EB1A adjudication.  If a petitioner is found to have met 3 of the 10 criteria, USCIS will then proceed to make “a final merits determination,” based on all the evidence in the record, to determine if the petitioner has truly risen to the very top of his/her field and whose achievements have been recognized internationally. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

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