Relatively strict criteria govern which aliens qualify for an EB-1A visa. U.S. Citizenship and Immigration Services (USCIS) adjudicating officers evaluate cases on the evidence presented against statutorily defined requirements. Officers reviewing petitions look for aliens whose cases demonstrate sustained national or international acclaim and essentially present themselves, with extensive documentation, as one of a small group of professionals who have risen to the top of their fields.
To satisfy the legal criteria for an EB-1A, applicants must present one of two types of evidence: either a one-time, major international award such as a Nobel Prize or Pulitzer or fulfilling at least three out of 10 qualifications stipulated in C.F.R. § 204.5(h)(3).
We break down the adjudication process into “tiers” and further explore them below.
USCIS Two-Tier Analysis
First Tier – Preponderance of Evidence on an Individual Basis
In the first tier, applicants must satisfy the preliminary requisites of demonstrating an intention to enter the U.S. to continue working in their field of extraordinary ability, and ideally striving to show that such work will serve U.S. national interests. If these foundational requirements are satisfied, and an applicant has won a prestigious international award, then the alien’s EB-1A application will essentially always be approved.
If these foundational requirements are satisfied but an alien lacks such an internationally renowned award, then fulfilling three of the following 10 criteria will suffice for approval.
Receipt of a less-recognized national or international award for excellence in the field of endeavor.
Membership in associations requiring outstanding achievements of their members, as judged by recognized national or international experts in the relevant field.
Published material in professional or major trade publications, or in other major media, relating to the alien’s work. Evidence of this criterion should include the title, date, and author of the piece, in addition to any necessary translations.
Participation, either individually or on a panel, as a judge of others’ works in the same or a related field.
Original scientific, scholarly, artistic, athletic, or business-related contributions that have had a demonstrably major significance in the alien’s field.
Authorship of scholarly articles in professional or major trade publications, or in other major media, in the field.
Display of work at artistic exhibitions or showcases. (Typically, this criterion is useful for an artist who has publicly displayed his or her work.)
Assuming a leading or critical role in an organization or establishment with a distinguished reputation.
Commanding and holding a high salary, or significantly high remuneration for services, relative to others in the field.
Commercial success in the performing arts. (Typically, this criterion is used by immigrant singers, performing artists, musicians, and film actors.)
If fewer than three of the above criteria are fulfilled, then the petitioner’s application will likely not be approved.
But if the applicant has demonstrated evidence of at least three of the above 10 criteria, then the applicant’s case will proceed to the second tier of adjudication, when final determinations on petitions are rendered by USCIS.
Second Tier – Final Merits Determination
USCIS has restructured the methodology of its EB-1A evaluation process such that the evidence in its totality is, during the final stage of adjudication, weighed against the legal criteria for extraordinary ability.
After satisfying the first tier, the evidence an alien petitioner submits will be considered holistically, with USCIS weighing the evidence against the high standards needed to qualify as an Alien of Extraordinary Ability. In practice, this means USCIS has more discretionary power to deny or approve EB-1A cases, even if applicants have successfully demonstrated at least three of the 10 types of evidence in the first tier.
In the second tier, the totality of an alien’s submitted evidence must establish that the he or she has:
Sustained national or international acclaim. The alien’s accomplishments have been recognized in the associated field.
A high level of expertise. This indicates that the alien is among a small percentage of people who have risen to the very top of the relevant field.
Many practitioners have found that securing approvals for the EB-1A petitions they file is becoming increasingly difficult as a result of the methodology described above. Failure to successfully represent EB-1A clients has the potential to result in talented scientists, researchers, and other professionals deciding to altogether leave the U.S., thereby impeding U.S. innovation and economic progress.
Despite this anecdotal trend, our firm has maintained a high approval rate on our clients’ EB-1A cases.
If you feel that you meet the EB-1A requirements and would like to file an employment-based petition for permanent residence, you should consider filing a petition under the "Alien of Extraordinary Ability" category. As with any petition for permanent residence, our attorneys can help you determine which type of petition is most suitable for you.
For more information on the EB-1A visa, refer to the following links:
Our experienced immigration attorneys are here to assist you in your EB-1 application. For more detailed information on the EB-1 category, including minimum requirements and USCIS policies, refer to the following links: