EB-1A Petitionsⁱ

-Altaffer & Chen PLLC -

There are different paths to immigrating to the United States; EB-1A (employment-based green card under the first preference as an alien with extraordinary ability) is one of them. No offer of employment or labor certification is required for an EB-1A petition; thus, anyone can file such a  petition on behalf of an alien with extraordinary ability, including the alien himself or herself as a self-petitioner.

The patent benefits of the EB-1A petition are:          

• No offer of employment or labor certification is required.
• Significant investments like EB-5 immigrant investors are not required except for paying attorneys’ fees and costs such as filing fees.
• A petition may be approved in a short time if an expedited determination is requested by paying a premium processing fee.

On the other hand, the requirements for granting an EB-1A petition are demanding; our study of recent AAO (Administrative Appeals Office) decisions seems to show that its review of an EB-1A petition has been more stringent than before.

However, we can help you achieve your American dream via a petition for a green card under the classification of an individual of extraordinary ability, if applicable, through our professional, effective representation at a reasonable cost. We understand what pertinent, probative, and credible evidence or documentation the USCIS wants to see, and how it reviews the evidence or documentation provided and renders a final decision by applying a multiple-part analysis. We regularly research and analyze EB-1A cases decided by the relevant authorities and carefully follow the current trend to better serve our clients. Therefore, we know what evidence needs to be furnished, how to use the evidence wisely and appropriately, and how to draft a fine, persuasive cover letter or petition letter—all of which can lead to a successful petition.

Prizes or Awards

(8 C.F.R. § 204.5(h)(3)(i))

To be eligible for an individual of extraordinary ability, a self-petitioner must demonstrate that he or she has received a major, internationally recognized award[ii] or in the alternative, fulfilled at least three of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3).[iii]   The first criterion is the petitioner’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

First, USCIS determines whether a petitioner, not his or her employer, was the recipient of prizes or awards. Note that AAO non-precedent decisions, not binding though, indicate that it is sufficient evidence if an award was issued to a corporation while separately listing individuals by name as award recipients.

Second, the petitioner should demonstrate the criteria used to grant the prizes or awards, their significance (including the national or international recognition associated with the awards), the reputation of the organization or panel granting the awards, the geographic scope of the awards and any limitations on competitors, the number of awards or prizes granted, evidence related to previous award winners, and public announcements of the awards.  For example, a localized prize or an award might be insufficient evidence unless the prize or award is otherwise shown as nationally or internationally recognized.

Finally, a prize or an award must be granted for a petitioner’s excellence, not for something else.

Membership

(8 C.F.R. § 204.5(h)(3)(ii))

The second criterion of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) is membership in associations that require outstanding achievements.

To meet this criterion, a petitioner must demonstrate that his or her membership in associations in the field is based on outstanding achievements as judged by recognized national or international experts in their disciplines or fields.

Documentation of actual membership is required. Further, evidence such as an association’s constitution or by-laws or any other objective documentation—manifesting the procedures and requirements for selecting a member, the requirements for a member, and the qualifications required for the reviewers of the selection committee—should be submitted.

USCIS specifically gives an example of establishing membership—membership in the National Academy of Sciences as a foreign associate. First, a candidate is required to be nominated by an academy member. Second, membership is ultimately granted based upon recognition of the candidate's distinguished achievements in original research.

To clarify, USCIS provides exemplary instances where a petitioner’s membership is NOT based on outstanding achievements and thus satisfies the criterion:

• Solely on a level of education or years of experience in a particular field;
• On the payment of a fee or by subscribing to an association's publications; or
• On a requirement, compulsory or otherwise, for employment in certain occupations, such as union membership or guild affiliation for actors.

In a 2022 case, a general manager petitioner’s petition was denied. The petitioner claimed to meet four of the ten criteria, including membership in associations in the field which require outstanding achievements of their members. The petitioner submitted evidence of two memberships. One of them requires, among other things, that a prospective member must have made outstanding influence or outstanding talents in the relevant field. The regional director, however, concluded that influence and talent in the field are not outstanding achievements.

Note that a qualifying association requires outstanding achievements of its members, but the purpose of such an association is not to simply recognize and praise achievements.

Published Material

(8 C.F.R. § 204.5(h)(3)(iii))

The third criterion of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) is published material about the petitioner and his or her work in the field of endeavor in professional or major trade publications or other major media.

To meet this criterion, a petitioner must provide information about the title, date, and author of every piece of submitted material.

Articles must be specifically about the petitioner, relating to his or her work in the field. Marketing materials created for the purpose of selling a petitioner's products or promoting his or her services are not generally considered to be published material about the petitioner. Further, USCIS does not consider articles mentioning a petitioner’s name in passing to be about his or her work in the field.

In addition, a publication must qualify as a professional or major trade publication, or other major media with the required information on the publication’s circulation (online or in print) and the intended audience of the publication.

Keep in mind that any document in a foreign language must be accompanied by a full English language translation as required under 8 C.F.R. § 103.2(b)(3). Published material is no exception. The translator must certify that (i) the English language translation is complete and accurate and (ii) the translator is competent to translate from the foreign language into English.

Judging Activity

(8 C.F.R. § 204.5(h)(3)(iv))

The fourth criterion of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) is the petitioner’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of the petitioner’s expertise.

To meet this criterion, a petitioner must show that he or she (1) has been invited to judge the work of others and (2) participated in the judging activities.

Peer reviewing for a scholarly journal, as evidenced by a request from the journal to perform the review and proof of actual completion of the review, is an example of sufficient documentation. Another example provided by USCIS of satisfying the criterion is: serving as a member of a Ph.D. dissertation committee that makes the final judgment as to whether a candidate's body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.

Submission of evidence showing a petitioner’s involvement in a judging panel, even requiring the petitioner to judge the work of individuals, is insufficient. The petitioner should further provide documentary evidence regarding the petitioner’s specific duties, assessments, and the names of the individuals whose work he or she evaluated.

Note that the language of this criterion does not use plurals, therefore a single judging activity should suffice to satisfy the criterion at the first step of USCIS’s review.

Original Contributions of Major Significance

(8 C.F.R. § 204.5(h)(3)(v))

The fifth criterion of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) is the petitioner’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.

To meet this criterion, a petitioner must show that he or she (1) has made original contributions in the field and (2) the original work constitutes major, significant contributions to the field.

Originality alone is not enough; a petitioner must also establish his or her work is of major significance.  For example, peer-reviewed presentations at academic symposia or peer-reviewed articles in scholarly journals that have provoked widespread commentary or received notice from others working in the field, or entries (particularly a goodly number) in a citation index that cite the petitioner's work as authoritative in the field, may be probative of the significance of the person's contributions to the field of endeavor.

Regarding this criterion, experts’ opinion letters can add value if they specifically explain the major significance of the petitioner’s contributions to the field and their impact on subsequent work.

Authorship of Scholarly Articles

(8 C.F.R. § 204.5(h)(3)(vi))

The sixth criterion of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) is the petitioner’s authorship of scholarly articles in the field, in professional or major trade publications, or in other major media.

To meet this criterion, a petitioner must first have authored scholarly articles in the field. A scholarly article in the academic arena reports on original research, experimentation, or philosophical discourse, and generally should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. For other fields, a scholarly article should be written for learned persons in the petitioner’s field. Learned persons refer to all persons having profound knowledge of a field. For instance, an article or a book written for a general readership or amateur persons in the field rather than learned individuals does not satisfy the criterion.

Second, a petitioner’s scholarly articles should be published in a professional publication, major trade publication, or major media publication with evidence showing high circulation (online or in print) compared to other circulation statistics and the intended audience of the publication. 

Display of Work

(8 C.F.R. § 204.5(h)(3)(vii))

The seventh criterion of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) is the display of a petitioner’s work in the field at artistic exhibitions or showcases.

To meet this criterion, a petitioner must establish that the display work is his or her work product and that the venues where his or her work was displayed were artistic exhibitions or showcases. An exhibition refers to a public showing (as of works of art, objects of manufacture, or athletic skill).

Leading or Critical Role

(8 C.F.R. § 204.5(h)(3)(viii))

The eighth criterion of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) is that the petitioner has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.

To meet this criterion under a leading role, a petitioner must establish that he or she has performed in a leading or critical role for an organization, establishment, or a division or department of an organization or establishment.

A leading role should be apparent by its position in the overall organizational hierarchy with the role's matching duties. A critical role should be apparent from the petitioner's impact on the organization or the establishment's activities. The petitioner's performance in this role should establish whether the role is (or was) critical for the organization or establishment as a whole. Evidence of opinion letters from persons with personal knowledge elaborating how the petitioner’s leading or critical role is (or was) significant can be particularly helpful.

USCIS then determines whether the organization or establishment,  or the department or division of the organization or establishment, for which the petitioner holds or held a leading or critical role, has a distinguished reputation. Distinguished is marked by eminence, distinction, or excellence or befitting an eminent person. The relative size or longevity of an organization or its establishment is not determinative but is a pertinent factor to be considered in determining whether a distinguished reputation exists.

Further, an organization’s self-serving promotional materials alone are not enough to establish its distinguished reputation. Other independent, objective evidence to document the eminence, distinction, and excellence of the organization is needed. Additionally, the organization must enjoy a distinguished reputation not just in the past but continue to do so at the time of filing continuing through adjudication.

High Salary or Remuneration

(8 C.F.R. § 204.5(h)(3)(ix))

The ninth criterion of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) is that the petitioner has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.

To meet this criterion, a petitioner must provide appropriate evidence showing his or her compensation is high relative to that of others working in the field, such as geographical or position-appropriate compensation surveys and organizational justifications to pay above the compensation data.

If a  petitioner worked and/or works for an employer in the United States, USCIS may use data from the following websites in evaluating the evidence provided by the petitioner: (1) The Bureau of Labor Statistics (BLS) Overview of BLS Wage Data by Area and Occupation webpage; (2) The Department of Labor's Career One Stop website; and (3) The Department of Labor's Office of Foreign Labor Certification Online Wage Library.

When comparing, USCIS once determined that (1) a petitioner’s total remuneration being high compared to the average base salaries in the field does not suffice; and (2) an above-average salary does not necessarily equate to a “high salary” for purposes of meeting this criterion.

For a petitioner working in a foreign country, his or her high compensation will be evaluated based on the wage statistics or comparable evidence in that country, rather than by simply converting the salary to U.S. dollars and then viewing whether that salary would be considered high in the United States.

Note that evidence of a petitioner’s expected future earnings cannot meet the criterion because the regulation requires that the petitioner “has commanded a high salary or other significantly high remuneration.”

When providing documentary evidence, it is a desirable practice that a petitioner submits not only documentation of past earnings but also supporting evidence (such as earnings statements, payroll or bank records, tax documentation, or other documentation demonstrating a claimed total salary or total remuneration received from an employer).

Commercial Success

(8 C.F.R. § 204.5(h)(3)(x))

The tenth criterion of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3) is the petitioner’s commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

To meet this criterion, a petitioner must provide the volume of sales and box office receipts reflecting the petitioner’s commercial success relative to others involved in similar pursuits in the performing arts. The mere fact that the petitioner has recorded and released musical compilations or performed in theatrical, motion picture, or television productions, in and of itself, would be insufficient. The petitioner must further establish that his or her work has received high sales, receipts, or comparable evidence of commercial success relative to others in the industry.

Regarding data of a provider of streaming film and television content, it is noted that the "commercial success" criterion is inherently sales based, while subscribers of a provider for the petitioner’s work pay a flat fee for unlimited streaming, such that individual movies do not generate "sales" in the traditional sense. And even if the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) allows for the submission of streaming data and rankings or some other measure of "commercial success" in lieu of box office receipts, additional evidence is needed to demonstrate that the petitioner meets this criterion based on his or her commercial success.

DISCLAIMER:

This article does not, and is not intended to, constitute legal advice; instead, it is for general informational purposes only.  The information presented in this article may not reflect the most up-to-date legal developments and is subject to change at any point in time.   The information presented in this article does not create an attorney-client relationship.  Readers of this article should contact their attorney to obtain advice regarding any particular legal matter.  No readers should act or refrain from acting based on the information presented in this article without first seeking legal advice from counsel in the relevant jurisdiction.  No representations are made that this article is error-free.  Altaffer & Chen PLLC expressly disclaims all liabilities arising from any actions taken or refrained from being taken based on the information presented in this article.

10/12/2022

[i]  The source of information about this article is USCIS’s official website uscis.gov.

[ii]  For instance, Nobel Prize, Pulitzer Prize, Academy Award, & Olympic Medal.

[iii]  See 8 C.F.R. § 204.5(h)(3) regarding “initial evidence.”  A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, international recognized award), or at least three of the following: (i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation; (iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought; (v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; (vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media; (vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; (viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; (ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or (x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.