Other Alternatives to H-1B Visa

The initial H-1B random selection process was completed in late March.  USCIS has not officially released the number of H-1B registrations and selection total.  However, based on unofficial estimates, the number of H-1B applicants continue to be sky-high.  This year, USCIS implemented a new policy which prohibits the entering of multiple registrations for the same employee, which should have improved the chances for selection.  Still, based on statistics gathered so far, the overall selection rate is still undesirable.

For the unselected foreign students and workers, they must now face the harsh reality of their future. This article presents some alternatives that they may consider based on their background and qualifications:

Practical Training Employment

For some foreign students with a STEM degree, continue working with their STEM OPT employment authorization may be the best option. While waiting for the next year's H-1B lottery, they may continue working for their employers.  They must work for an employer who is e-Verified.  Some universities offer internship an co-op employment opportunities.  Enrolled F-1 students may participate in these programs through Curriculum Practical Training (CPT) authorization.

Extraordinary Ability O-1 Work Visa

For individuals with outstanding qualifications or a strong STEM background, the O-1 extraordinary ability visa may be an option. The O-1 visa requires substantial proof of one's qualifications and achievements. O-1 is a temporary work visa approved for up to 3 years each time, and can be extended indefinitely.  Please see our previous article for details of the O-1 visa.

Employer-sponsored Green Card

Rather than relying only on H-1B, one may also consider applying for their green card directly, if their employer is ready to start the application process. There is no requirement that one must be in H-1B status first before applying for their permanent resident status.  For applicants born in countries with available visa numbers, their green cards could be approved relatively quickly.  However, they must maintain their lawful status until they are able to submit their final green card application.

Self-Petitioned Green Card

Without sponsorship by a U.S. employer, a foreign worker may also file a self-petition for their green card if qualified.  For example, they may apply for a green card under the EB-2 visa category with a National Interest Waiver (NIW).  The applicant must prove that their immigration will serve an important interest of the United States.  USCIS has encouraged qualified individuals with a strong STEM background to apply.  Please see our previous article for details of an NIW application. 

EB-1A Extraordinary Ability petition can also be filed by a foreign applicant without employer sponsorship.  It is similar to the O-1 work visa with even more stringent requirements.  One must submit evidence to demonstrate that they have risen to the very top of their field of endeavor. Proof of sustainted national or international acclaim is also required.  Not only scientists or researchers can submit EB-1A petitions, professionals in other fields such as art and design, business, education, health care, engineering, etc., may also qualify.  When in doubt, one should obtain a professional evaluation of their qualifications. 

E-2 Visa

For entrepreneurs who are interested in starting up a small business in the U.S., the E-2 Treaty Investor visa may be the answer.  Their spouses and children may also live, work and study in the U.S. To apply for an E-2 visa, one's country of citizenship (not birth) must have a commerce treaty with the U.S.  Most European and Asian countries are eligible.  Please see our previous article for details. 

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

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.) 

Approval of EB1A Extraordinary Ability Petition

The Employment First Preference immigrant visa category for persons with extraordinary ability is known to have very high adjudication standards, and only a very small percentage of cases are approved every year.  Approval rates for non-scientific fields are even lower. That's why we are particularly elated when our architect client's EB1A petition was approved after only 8 days!

Proving extraordinary ability for non-scientific fields such as design, architecture, education, etc., is more difficult due to the objective aspects of these fields.  A post-doc scientist can use his novel scientific discoveries, published researched papers, patents, etc., to prove his case. Similarly, a cancer researcher can use the quantitative results of her cancer research and its effectiveness to prove her extraordinary ability.  

In contrast, an artist or designer does not have similar methods to prove her ability, as there is a certain extent of subjectivity when a piece of artwork is evaluated.  Even extremely talented artists and writers such as Picasso, Van Gogh, Poe, Monet, etc., did not become famous until after they died.  Still, we recognized the talent in our client and painstakingly extracted the various features and aspects of her designs, including her ability to incorporate design with the existing surrounding and landscape, and the ability to solve challenging design issues, to showcase her extraordinary ability.  Recommendation letters of experts from different countries and various government and private sectors were also presented as expert testimonies.  

To gain approval, our firm also employed the concept of comparable evidence to argue this EB1A case. For example, one of the EB1A evidentiary criteria is to prove showcasing of the artist artwork in art exhibitions.  We argued that although our clients' work was not routinely displayed in art galleries, her completed architectural work was actually displayed permanently in live form as buildings, structures, museums, plazas, etc., all over the world.   We also argued that client's presentation in professional conferences can be used to meet the criterion of “published articles,” as previously held by the USCIS Administrative Appeals Office.  

Knowing that substantial evidentiary proof is required to support an extraordinary ability EB1A case, we meticulously gathered documents regarding our client's major projects, both in the U.S. and also other countries, to support the petition. These documents included the project documents, design drawings and schemas, news reports about the design and projects, praises and honors received, positive commercial impact, etc. At the end, over 10 pounds (4.54 kg) of materials were evidentiary materials to USCIS. 

We do not want to claim all the credit for the approval.  Our client also worked very hard to gather supporting evidence. A review of USCIS case history shows many denials for architects and designers. A petitioner must truly be extraordinary and stand out among her peers in order to have a chance for approval.  She must also establish that she has enjoyed sustained national and international acclaim. However, without proper legal representation, in-depth analysis, and sufficient evidentiary proof, even a well-qualified applicant may fail to prove her 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.) 

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.) 

Adjudication Trend of EB-1A Extraordinary Ability Petitions

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.  

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

Top Iranian table tennis player denied extraordinary ability visa

A top Iranian ping pong player was denied an extraordinary ability alien visa by the USCIS, and the decision was upheld by a U.S. federal district court.   In order to obtain an EB-1(a) extraordinary ability visa, a petitioner must have won a single major, international recognized award (e.g. a Nobel prize) or, alternatively, produce evidence establishing that he meets at least three of the 10 listed criteria in the regulation.  Here the Iranian player Norrozi was found to have met only two of the 10 listed criteria. Specifically, although Norrozi was found to have won “lesser nationally or internationally recognized prizes or awards” and held “membership in associations”, he failed to demonstrate that (1) he had held “a leading or critical role” for his past participation in tournaments, and (2) there was published material about him in professional or major trade publications or other major media.

Leading or Critical Role

            Norrozi participated in a highly selective process to obtain membership on the Iranian national table tennis team to participate in the Olympics.  He had to compete with the best table tennis players in this country in a national tournament and became the national champion before he was selected.  In fact, he was the only player that was selected to be on the national team.  Norrozi argued that the highly selective process and the fact that he is the only team player representing his country clearly indicates that he was playing ping pong in a leading or critical role.  However, the USCIS takes the position that “to play a critical or leading role on a team presupposes making leadership contributions in relation to one’s teammates” but Norrozi had no teammates.  The federal court found the conclusion reasonable.

Published Material about the Player

            Norrozi also presented numerous news articles to support his position that there were published materials about him as a table tennis player.  However, both the USCIS and the court observed that the articles submitted are mostly about the Iranian Table Tennis Team and only mention Norrozi briefly.  In order to meet the “published material” criterion, the regulations require that published material must be about the petitioner relating to his work in the field, but not just about his employer or a related organization.   Hence, Norrozi also failed to meet this criteria.

Overall Merits Determination

            As part of the new adjudication standards implemented by USCIS following the Ninth Circuit Court of Appeals’ decision in Kazarian, the government must also conduct a final merits determination to decide if the petitioner should be granted an extraordinary ability visa.  This is the second step of the adjudication process.  A determination is made based on the totality of the evidence whether the petitioner has established that she belongs to a small percentage of individuals who have risen to the top of their field of endeavor; and that she has sustained national or international acclaim as recognition of her achievements.  Here, Norrozi ranks 284^th in the world in table tennis, which places him in the 17^th percentile of all ranked players.  He also finished in 65^th place in the 2008 Olympic table-tennis competition.  Although his accomplishments are indeed impressive, both the USCIS and the court concluded that he does not belong to that small percentage of top table tennis players to qualify for an extraordinary ability visa. 

Conclusion

            This is actually the second petition filed by Mr. Norrozi.  His first petition was initially approved by the USCIS but was subsequently reopened for review after the government noticed that the attorney who handled his petition had filed a large number of extraordinary ability cases from Iran.  The first petition was eventually denied under the new Kazarian standard.  Mr. Norrozi’s case highlights the reality that the extraordinary ability visa is granted only to a small percentage of individuals who have risen to the very top of their field of endeavor.   Under the new USCIS policy, even if a petitioner has satisfied three of the 10 enumerated criteria, an adjudication officer may still conclude that she failed the final merits determination and deny her petition.