Published on    30 June 2014     Hits: 621

EB-1 Alien with extraordinary ability cases do not require a sponsor or  labor certification.  The processing time also is one of the fastest  among all immigration options.  As such, it is a very attractive  category for anyone that is interested in obtaining U.S. permanent  residency.

However, because the highest priority has been given to this category,  it is reserved for those who are at the very top of their field and the  evidentiary requirements are quite complicated. Unfortunately, the  recent changes show that the USCIS has even heightened the already difficult standards.  In this blog, I’d like to introduce recent agency  level changes to this category.
 
First, the regulations are clear that an alien of “extraordinary  ability” does not need a job offer from a United States employer.
 
It certainly allows individuals to petition for themselves without  having to ask US employer to be a petitioner on their behalf.  Does that  also mean the application will be successful without a job or future  job offer? 
 
EB-1 applicant is required to prove that he will continue to pursue his  work within the United States.  Without a job or a job offer, this  criterion is difficult to meet.  In order to satisfy this criterion, the  applicant should be able to submit letters from prospective employers, a  statement from the alien detailing his future work plans and other  evidence of future work commitments.
 
Second, ‘extraordinary ability’ is a vague concept.  How can you prove  it?  To help to clarify the standard 10 criteria have been created, and  the applicant is required to meet at least 3 out of the 10 listed  criteria below to prove extraordinary ability in your field:

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence.             
• Membership in associations which require outstanding achievements of  their members, as judged by recognized national or international experts  in their fields.
     
• Published material in professional/major trade publications or major  media about the alien and relating to the alien's work field.
              
• Participation as a judge (individually or as a part of a panel) evaluating the work of others.
   
• Original scientific, scholarly, or artistic contributions of major significance.
      
• Authorship of scholarly articles in professional journals or other major media.
            
• Artistic exhibitions/shows.
              
• Leading role within an organization/establishment with a distinguished reputation.
           
• High salary/compensation for services in comparison to others.
             
• Commercial success within the performing arts.

The case law for this category has been settled until another case, Kazarian,  came out.  The court ruling was considered reasonable and was not about  increasing the standards.  However, the USCIS somehow hijacked the  court’s reasoning and heightened the evidentiary requirements to the 10  criteria.

A few notable examples include:        

• In one case, the USCIS concluded that that UNICEF prize was an  “internationally recognized award of excellence in the petitioner’s  field” but still decided the applicant did not meet the criterion  because, in its view, “[a] single prize, awarded four years prior . . .,  does not provide evidence of the petitioner’s sustained acclaim and is  not sufficient to establish that he meets this criterion.”     
        
• I believe this is an error because the evidentiary criterion does not  require that the “lesser” prize demonstrate sustained acclaim. It merely  requires the receipt of the prize.            

§ 204.5(h)(3)(iii) requires only “[p]ublished material about the alien  in professional or major trade publications.”  USCIS erroneously  decided that the applicant did not satisfy this criterion because the  publications he submitted only referred to his work during a limited  period of time.

Again, there is no requirement as to how long a period the publications must cover.

•  Also, the fourth criterion requires only “[e]vidence of the alien’s  participation . . . as a judge of the work of others in the same or an  allied field,” but USCIS wrongly discounted the applicant’s evidence in  part because USCIS “interpret[ed] this regulation to require that the  selection and participation process for serving as the judge of the work  of others in the field be indicative of national or international  acclaim in the field.”
   
•  Finally, the seventh criterion asks for “[e]vidence of the display of  the alien’s work in the field at artistic exhibitions or showcases.”  USCIS erroneously insisted that the applicant show that his work “was  featured more prominently than others in the competitions or that his  work was the main focus of the competitions or festivals.

As these examples show that the evidentiary standards for EB-1 category  has become even more difficult.  I, along with many attorneys in our  field, disagree with the recent USCIS decisions and feel some of its  reasoning is clearly erroneous. 

There are tides to the administrative agencies’ practice.  It is  disappointing and even disturbing because we as people need to be able  to trust our government to act with fairness and equity. This new trend  may get reversed through legal challenges.  Until then, it’s important  for those who are interested to understand what they are facing.