The Employment Based First preference category always reminds me of Tina Turner’s song “You’re simply the best” because it pretty much sums up the standard for EB-1A immigrant category. The legal standard in the EB1 extraordinary ability category is very high. While the EB-1A category was intended to apply to a small group of individuals, it was not meant to be unattainable. The alien applicants should be able to demonstrate their extraordinary abilities in the fields of science, art, education, business, and athletics. It is necessary to establish that the extraordinary ability has been demonstrated by sustained national or international acclaim and that the achievements have been recognized in the field of endeavor with extensive documentation.
The USCIS approval in the EB1 extraordinary ability (EB1-EA or EB-1A) petition is one of the most difficult to obtain. The EB-1A regulation requires that the alien applicant should reach the very top of his or her field of endeavor. Occasionally, U.S. Citizenship and Immigration Services (USCIS) adjudicators may go beyond the high standard that is appropriate for the EB-1A category and create novel and virtually insurmountable requirements.
The EB1-Extraordinary Ability immigration category is for persons of extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and who will prospectively be of substantial benefit to the United States.
One of the greatest benefits of the EB-1A category is that a job offer and Labor Certification are not required. An alien may do some self-evaluation before considering filing the application by answering the following questions:
1) Does my field involve the sciences, arts, education, business, or athletics?
2) Have I received sustained national or international acclaim in the form of either:
- Receipt of a major one-time achievement award (example: Nobel Prize, Pulitzer, Prize, Olympic Gold Medal, other major awards)
-OR in the alternative-
- At least three of the following ten criteria:
- received any lesser nationally or internationally recognized prizes or awards for excellence in your field of endeavor?
- member of associations that require outstanding achievements as judged by recognized national or international experts?
- published material in professional or major trade publications or major media about you which relates to your work in the field of endeavor?
- participated on a panel or as a judge of the work of others in the same or in an allied field of specialization?
- made original scientific, scholarly or business contributions that are of major significance?
- authored scholarly articles in professional journals or other major media?
- Your work has been displayed at exhibitions or showcases?
- played a leading or critical role for a distinguished organization?
- you command a high salary in comparison to others in your field?
- enjoyed commercial successes in the performing arts?
3) You can provide extensive documentation of these requirements.
4) Are you entering the US to continue working in your area of extraordinary ability?
5) Will your entry into the US substantially benefit the country?
Simply fulfilling three of above ten criteria does not guarantee that an EB-1A application will be approved. The USCIS has made it clear that to show extraordinary ability, the alien applicant must prove him or herself to be at the very top of his or her field of endeavor. Comprehensive documentation must be provided to substantiate claims to extraordinary ability. The USCIS is very careful to check the forms and sources of documentation, and the extent to which it establishes that the beneficiary is at the very top of the field.
The Extraordinary Ability category is unique, here are some characteristics that differentiate it from other standards, such as Exceptional or Outstanding abilities:
1) The “Extraordinary Ability” category generally requires higher achievement and ability;
2) The “Extraordinary Ability” category can apply to many different fields in the sciences, arts, education, business, or athletics, while the “Outstanding Researcher or Professor” category generally applies to scientific or scholarly fields;
3) The “Extraordinary Ability” category requires no specific employment or job offer, while the “Outstanding Researcher or Professor” category requires a job offer for a permanent research position or a tenured/tenure-track teaching position;
4) One can self-petition in the “Extraordinary Ability” category without a U.S. employer’s sponsorship, while the “Outstanding Researcher or Professor” category requires a sponsorship from the alien’s employer or prospective employer;
5) The “Outstanding Researcher or Professor” category requires at least three years’ worth of experience in the field, while the “Extraordinary Ability” category has no specified minimum experience requirement for any particular field.
If you can meet these requirements, you may be able to successfully file an EB-1A application. If you do not meet these requirements, the National Interest Waiver category also offers many advantages to bypass the traditional Labor Certification process. Your accomplishments just a little short of “Extraordinary” may appear “Exceptional” as part of your National Interest Waiver application. It is highly advised to consult an immigration attorney before applying for immigration benefits under employment-based category especially under first preference. In conclusion, here is Tina Turner singing about an EB-1A immigrant: