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EB1A Aliens of Extraordinary Ability

The Legal Standard    

The Immigration and Naturalization Act Section 203(b)(1)(A) provides:

Visas shall first be made available to an alien (i) if the alien 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, (ii)the alien seeks to enter the United States to continue work in the area of extraordinary ability, and (iii) the alien’s entry into the United States will substantially benefit prospectively the United States.

USCIS regulation further provides that “extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.   8 C.F.R. Section 204.5(h)(2). 

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 his 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).  Id. Section 204.5(h)(3). 

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.  Id. Section 204.5(h)(4).

Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise.  Id. Section 204.5(h)(5).

8 C.F.R. Section 204.5(h)(3) further provides that a petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and his or his 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 association 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 major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation.

(iv)     Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or in an allied field of specialization to that 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 that the display of 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 and establishments that have a distinguished reputation

(ix)     Evidence that the alien has either 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

(4)      If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

(5)    No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification;

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The Q & A

1)  
What is so great about EB1a? 

An EB1a application, if successful, means that you will get a green card within about 6 – 8 months after filing, whichever country you were born.  It also does not need to have a job offer.  You can apply based on your own merit.

2)  
So how good do I have to be to qualify for an EB1a?

You can refer to the legal standards to left of this Q & A but practically you will need to have QUANTIFIABLE achievements on a national level in order to impress the USCIS officer to approve your case.  Quantifiable achievements usually mean you obtain certain national rankings expressed in numbers, be it a national or international award, an exceedingly high number of citations to your articles and some other achievements that give you a rank order.  For example, one of our successful applicants was awarded a Presidential Fellowship that was awarded for that year to a selected few and she was only one of the two foreign nationals in the entire United States who were awarded the fellowship.  Our experience tells us that even though the combination of applicant’s accomplishments is looked at, a successful applicant must have at least one or two of such QUANTIFIABLE highlights in order to be successful. Some other positive factors include patents, work experience with federal governments, exposure on international events and others.

3)  What is a typical background for a successful EB1a candidate?

A typical successful EB1a must have at least one of the following accomplishments.  This is not the legal standard but it is what we have gathered from representing numerous cases.  Remember only one of the following items can indicate a good case, because any of the following achievement can overcompensate any of your other not-so-bright credentials.

  • Total number of citations of the applicant’s articles in the neighborhood of 100
  • Awarded a truly national or international award
  • Certain uniqueness about your background that put you into a reasonably hard-to-find category.  For example, you involved in the basic research of an anti-cancer drug and also is the one that obtained its patent and involved in its clinical trials.  These experiences make an individual unique
  • Your article (remember non-first author is fine) has been quoted or appraised in such recognition systems as Faculty 2000                                                    
There are, however, clients who we represent and do succeed in getting an EB1(a) approval with only 2 publications and fewer than 10 citations. Usually these applicants are experts in an very exclusive area of research.

4)  What is the difference between a successful EB1A candidate versus a successful EB1B or National Interest Waiver Candidate?

The EB1B and National Interest Waiver have definitely less stringent requirement.  If you do not possess any of the ABOVE and you are a decent scholar or researcher, you can apply for EB1B if you have job offer or a National Interest Waiver if you don’t. 

5)  What are some the stuff can a client do to improve his or her chances after the client hire your firm?

There are a number of things you must do to quickly upgrade your achievements before you apply for EB1A.   For example, we always advise our clients to join certain merit-based associations and obtain an opportunity to review article submissions to journals to satisfy some of the legal standards.  Further, we also have some customized solutions to package your background in much better shape.

6)  When you say I am qualified, does it really mean I am really qualified?

After our evaluation, we will say to you whether we believe you are a good candidate or not.  Even though we don’t guarantee results, but our taking the case means that we have enough confidence in the case that we would like to take 50% of the risk as well because for qualified candidates, we offer a contingent fee structure that we collect only first half of the attorney’s fee for the immigration petition.

7)  What is the approval rate of your EB1a cases?

So far we have had a 100% approval rate with Texas Service Center.

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