New Guidance on EB-1 'Extraordinary Ability' Eligibility Criteria

 

On October 2, 2024, U.S. Citizenship and Immigration Services (USCIS) introduced updated policy guidance aimed at clarifying eligibility criteria for the EB-1A immigrant visa classification for individuals with extraordinary abilities.  Overall the changes are positive and encouraging for applicants who plan to submit an EB-1A petition. 

Here are the key points from the new guidance:

1. Team Awards Are Now Considered

USCIS has confirmed that team-based achievements can be included as evidence under the criterion for lesser nationally or internationally recognized prizes or awards for excellence. Previously, it was unclear whether team awards could qualify, but this update clarifies that participation in team awards can strengthen an applicant's case for extraordinary ability.

2. Clarification on Past Memberships

Another significant clarification involves the membership criterion. USCIS will now consider an individual’s past memberships in associations or organizations that require outstanding achievements as evidence of extraordinary ability. This is an important change, as it expands the evidence pool to include historical memberships that demonstrate expertise and recognition in the field.

3. Changes to the Published Material Requirement

USCIS has also revised its approach to the published material criterion. Previously, the language suggested that published material about an applicant must highlight the value and impact of their contributions. However, the new guidance removes this requirement, streamlining the way published material can be used as evidence. This makes it easier for applicants to submit media coverage or reports about their work without needing to prove a direct connection to its significance.

4. Non-Artistic Exhibitions Limited

Regarding the criterion for exhibitions, USCIS clarified that the term “exhibition” as used in its regulations is limited to artistic exhibitions. While the general dictionary definition of "exhibition" includes public displays beyond the arts, USCIS will now only consider non-artistic exhibitions as part of a "properly supported" claim of comparable evidence. This change emphasizes the importance of properly supporting claims of extraordinary ability, especially when referencing exhibitions in fields other than art.

Building on Previous Guidance

The policy update is now part of the USCIS Policy Manual and is binding, replacing any previous guidance related to these criteria. This change represents a significant step toward making the EB-1 process clearer and more accessible for individuals seeking permanent residency based on their exceptional talents. As the policy is effective immediately, those planning to submit EB-1 petitions should familiarize themselves with the updated guidance to ensure they are presenting the strongest possible case.

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

Strategies Dealing with EB-1 Retrogression

The recent visa bulletin retrogression in the Employment First Preference (EB-1) visa category has disrupted  the plans of many intending immigrants.  Historically the EB-1 visa category is usually current, meaning that an applicant does not need to wait for an available visa number to get a green card.  However, this advantage has reversed recently. For example, in September's Visa Bulletin, there are cutoff dates for all countries in the EB-1 category.  Most countries have retrogressed to 2016 while China and India have gone back to 01/01/2012.  

The EB-1 visa category was created for "priority workers" as a shortcut to obtain the U.S. permanent resident status. EB-1 priority workers include foreigners with extraordinary ability, outstanding professors and researchers, and multinational executives and managers.  

EB-1 visa applicants should adjust their plans accordingly in light of the recent visa retrogression.

The Visa Office has predicted that EB-1 will not likely to return to current status until at least December 2018 or even 2019.  Hence, for those visa applicants who are in the U.S., they must maintain their status while waiting for their priority dates to be current.  Normally, when a visa applicant's priority date is current, he may file the I-140 visa application concurrently with the I-485 application to adjust status.  A person with a pending I-485 application is allowed to remain in the U.S.

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The current immigration policy does not allow filing of the I-485 adjustment application unless there is a current priority date.  (Note: Surprisingly, USCIS has indicated that I-485 applicants may follow the Filing Date Chart in October.)  Hence, an EB-1 visa applicant must seek other avenues to stay in the U.S. during retrogression. For extraordinary ability applicants, the O visa status is a logical choice. For multinational managers, they may apply for the parallel nonimmigrant L-1A visa.  The H-1B temporary work visa is another possibility.  For short term stay, one may also consider the B1/B2 visitor visa.

An applicant should depart the U.S. if there is no viable way to stay.  Staying in the U.S. without legal status could have serious consequences including being banned from returning to the U.S. for a period of time.  There is some legal relief for employment based applicants if their lapse of status is less than 6 months but the best strategy is to avoid any unlawful status altogether.

Even being outside of the U.S. one may continue with the immigrant visa application process.  For example, he may respond to a formal Request for Evidence from USCIS while abroad. After the I-140 visa petition has been approved and when the priority date becomes current, the visa applicant will be able to apply for an immigrant visa from an American Embassy to return to the U.S.

In the newly-released October's Visa Bulletin, the Employment Second Preference (EB-2) is actually back to current for most countries except India and China.  Hence, eligible applicants may also consider filing a petition under the EB-2 category.  For example, an EB-1 extraordinary ability applicant may also file an EB-2 petition with a request for a national interview waiver (NIW).

Timing is another critical issue to consider.  For example, premium processing service is still available to L-1A multinational manager petitions, allowing these applicants to extend their nonimmigrant status quickly.   However, premium processing service has been suspended for most H-1B petitions.  Still there are automatic extension rules that allow certain H-1B workers to continue working in the U.S. once an extension or change of employer petition has been filed.   Similarly, when a foreign  applicant submits a non-frivolousness application to change or extend his nonimmigrant status in stay in the U.S., he is generally allowed to remain in the U.S. until a decision is issued.  The application must be properly filed with all required documents before his current status expires.

Even if an EB-1 visa applicant already has an I-485 application pending, it is still a good idea for him to maintain his nonimmigrant status such as L-1A, H-1B, O, etc.   If the adjustment application is denied for whatever reasons, he would still have an nonimmigrant status to fall back on.  While premium processing is available to most I-140 petitions, it is is not available to the EB-1C multinational managers petitions and the regular processing time now is up to about one year.  Hence, one should carefully plan and time his applications.

Every trade has its master: Horse breeder found to have extraordinary ability

There is a fast-track way to obtain the U.S. green card for those who qualified.  The Immigration and Nationality Act (the Act) provides several first-preference visa classifications (EB-1) for foreigners to apply for U.S. permanent residence quickly.  These qualified foreigners are called priority workers.  "Aliens with extraordinary ability" under Section 203(b) of the Act is one such category.  Recently, the Administrative Appeals Office (AAO) of the USCIS approved an EB-1 Extraordinary Ability Alien petition for a thoroughbred horse breeder.

To qualify as an extraordinary ability alien, one must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics by virtue of "sustained national or international acclaim" and whose achievements have been recognized in the field through extensive documentation.  Under the regulations, a petitioner may demonstrate such sustained national or international acclaim by means of a one-time achievement such as  a major international award.  If there is no such a one-time achievement, the petitioner may provide evidence to show that he or she meets three of the ten listed criteria such as awards, published material about the petitioner, scholarly publications, etc.  

In Matter of P-H-, an unpublished decision, the AAO found that the petitioner, a thoroughbred horse breeder meets three of the ten requirements including:

(1) Published material about the petitioner: Two of UK's horse racing dignitaries interviewed him after his horse beat the race favorite. The interview was broadcast live on Channel 4 in UK, which has millions of viewers on average. 

(2)  Participation as a judge of others work:  Petitioner evaluated thoroughbred horses for people what would like to purchase them. 

(3) Original scientific, scholarly, artistic, or athletic, or business-related contributions:  Evidence showing petitioner's contributions to the thoroughbred horse racing community through breeding several champion horses.

However, according to the regulation, it is not enough for a petitioner to meet three of the ten requirements. To qualify as an extraordinary ability priority worker, the immigration officers must also perform a "final merits determination" to decide whether an immigrant visa should be granted, pursuant to Kazarian v. USCIS, a 2010 Ninth Circuit Court decision. Essentially, USCIS evaluates each piece of evidence individually and also collectively to determine whether the totality of the documents submitted establishes sustained national or international acclaim and whether it demonstrates that the individual is among the small percentage of individuals at the top of their professional field.

Here, AAO found that horse breeder does possess extraordinary ability, noting his "history of success an achievements."   Petitioner brought his stallion from the UK to Florida in 1989 when he moved to America.  Petitioner introduced two new bloodlines to America by breeding his horse.  In doing so, he created offspring with no close genetic replications.  For his novel and successful way of breeding horses, petitioner was called an "intuitive genius" in the field.  The horses that he bred won high profile races and competitions.  Petitioner also trained the 2010 Kentucky Derby-wining horse, Super Saver.  The horses that he bred were sold for high prices.  The petitioner also evaluated the suitability for breeding of numerous horses for both individuals and established horse training facilities on different continents. His expertise is relied by peers in both Europe and America.  

Consequently, after noting that the petitioner will continue working in his area of expertise in the U.S. (another requirement), the AAO approved his EB-1 extraordinary ability alien petition.

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. 

Citations of Publications not Required for Eb-1 Extraordinary Ability Visa: Kazarian vs. USCIS

In 2010, the U.S. Ninth Circuit Court of Appeal issued a decision on an Eb-1 extraordinary ability alien application filed by a theoretical physicist from Armenia. Although the Ninth Circuit denied his Eb-1 case at the end, the court held that citations are not required for scholarly publications to be considered as evidence in extraordinary ability petitions. This is a significant development in this type of immigration petitions, which are not frequently appealed to the Circuit Court. This decision will have an impact on how the USCIS adjudicate Eb-1 extraordinary ability visa petitions going forward.

The extraordinary ability visa under the Employment-based First Preference category was created for a person who possess a very high level of expertise, indicating that the individual is one of that small percentage who have risen to the very top of their field. 

Further, their achievements must have sustained national or international acclaim and that their achievements have been recognized in the field of expertise. There are two ways under the law that a person can prove extraordinary ability. First, he or she must produce evidence of a one-time achievement, usually, a major, international recognized award such as the Nobel Prize or an Academy Award. If not, the applicant must provide evidence that he or she meets at least three of the ten enumerated criteria in the regulations. These include lesser national or international prizes or awards, membership in associations which require outstanding achievements, published materials in professional or major trade publications, original authorship of scholarly articles, acting as a judge of others’ work, etc.

In this Ninth Circuit Court Eb-1 case, Kazarian v. U.S. Citizenship and Immigration Services, Mr. Kazarian conceded that he has not won a one-time major, international prize or award. Instead, he produced evidence that he has met at least three of the listed criteria. For example, he argued that he has published six scholarly papers in his field of theoretical physics in a scientific journal, which should be considered as meeting one criterion. 

After his case was denied by the USCIS, Kazarian filed an appeal with the Administrative Appeals Office (AAO) which affirmed the denial. The AAO held that since he did not produce any evidence of citations by other scientists of his publications, his articles did not meet the regulatory definition of evidence, because "publication of scholarly articles is not automatically evidence of sustained acclaim" and "we must consider the research community's reaction to these articles." 

The case reached the Ninth Circuit after a federal district court denied Kazarian’s appeal. The Ninth Circuit disagreed with the AAO, holding that the EB1A regulations do not specify that citations of published work are required, and that a government agency may not impose additional requirements during the process of adjudication.

Similarly, Kazarian also produced evidence of his review experience of graduate-level diploma work at his university to support his I-140 petition. The AAO held that reviewing the diploma works for graduate students at one's own university is not persuasive evidence of acclaim beyond that university. Instead, only evidence that an applicant served as a dissertation reviewer externally for a university with which he has no affiliation would meet the regulatory definition of evidence. Again, such an interpretation was held to be erroneous by the Ninth Circuit, noting that such a requirement does not exist in the regulations. Mr. Kazarian was found to have met this criterion too.

Although the Ninth Circuit ultimately denied the I-140 petition because Kazarian only met two of the ten criteria, the case holdings are still significant. It is expected that the USCIS will issue new guidance in regards to Eb-1 extraordinary ability visa petitions. Even though the Ninth Circuit only has jurisdiction over eleven states including California, Arizona, Hawaii, Oregon, etc., but any new policy by USCIS in this regard will likely be applied to all applications filed in the U.S.

(Published initially on 7/2/2010)

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 Updates:

Kazarian has proven to be a curse more than a blessing for EB-1A petitioners.  USCIS did follow the Ninth Circuit Court's ruling and issued additional guidance regarding adjudication of EB-1A petitions. However, the new guidance imposed a second layer of requirement for EB-1A petitions.  Even after a petitioner has met at least 3 of the 10 evidentiary categories, USCIS must conduct a final merits determination to decide if the petitioner has indeed risen to the very top of his/her field and enjoyed international recognition.  Based on this new guidance, approval rates of EB-1A petition have steadily declined in the following decade. 

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