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Tuesday, September 12, 2023

USCIS Issued Favorable Policy Guidance for EB-1 Extraordinary Ability Petition


Photo by Chris Barbalis on Unsplash

By Paul Szeto, Esq.

On 09/12/023, USCIS updated its Policy Manuel regarding the Employment First Preference EB-1A adjudication standard.  The updates include clarifications of the eligibility and evidentiary requirements for extraordinary ability petitions.  These updates are mostly favorable to the petitioners, especially those in STEM fields.

The current adjudication process of an EB-1A extraordinary ability petition involves two steps.  First, the petitioner must first prove that they have received a one-time achievement (i.e., a major, internationally recognized award) or meet at least three of the ten regulatory criteria.  

Second, the adjudicator must, based on all evidence in the record, make a “final merits determination” to determine if the petitioner has sustained national or international acclaim; and also that their extraordinary ability has been recognized in the field of expertise, indicating that the person has risen to the very top of his profession.  Against this legal framework, USCIS provided the recent update, with the following highlights:

  • Awards from well-known national institutions (e.g., R1 and R2) and professional associations may be accepted as “lesser recognized” awards.
  • Certain doctoral dissertation awards are also acceptable (Such academic awards were discounted by USCIS before.)
  • Certain higher level of professional memberships such as “fellow” are acceptable.
  • Serving as a member of a Ph.D. dissertation committee or peer reviewer for government research funding programs is acceptable evidence (provided, the person must actually serve in these roles.)
  • A high number of citations can be used to prove the significance of a person's original contributions, and a high h-index may serve as evidence that the person is among the small percentage at the top of the field.
  • Senior faculty or senior research position for a distinguished academic department or program can be evidence of "leading or critical role".
  • A supporting role of a program or department may be considered “critical” if the person's performance itself is critical. 
  • Whether the petitioner's salary or compensation is high is evaluated based on the local living standards (e.g., China or India), rather than a direct conversion to U.S. dollars. 
  • Comparable evidence can be used if a certain criterion does not apply to the person's profession. An adjudicator cannot limit the kind of evidence used to prove the EB-1 petition, if the evidence meets the regulatory requirements. 
  • Employment or research experience with highly ranked universities (e.g., based on QS World University Rankings) can be evidence of extraordinary ability. 
  • Invitations to speak or present research at national or international conferences can be evidence of extraordinary ability. 
  • If Requests for Evidence are issued for a certain type of evidence which has been submitted, the adjudicator should explain what the deficiencies are.
  • In denial decisions, if a petitioner has an approved O-1 petition previously, an adjudicator should explain the reasons why the petitioner is not approved for EB-1 classification.

The new policy guidance clarifies some long-standing legal issues regarding EB-1A petitions.  However, it is important to understand that the bar for EB-1A petitions is still very high.  When presenting a particular type of evidence (e.g., an award), background information (nature of award, selection criteria, number of awards, etc.) must be presented to provide sufficient context for the adjudicator to consider. Overall, these changes should make it easier for petitioners to prove their extraordinary ability. 

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

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