EB1A Comprehensive Overview

EB-1A refers to classification under the first preference category of employment-based immigration as an “alien of extraordinary ability.”

Classification under EB-1A is an attractive option because there is currently no visa backlog for this category and priority dates are current. This means more immediate consideration and processing of the petition. In addition, unlike most employment-based classifications, EB-1A petitions do not require an employer sponsor, and accordingly, the beneficiary may self-petition. The petitioner/beneficiary also need not be currently employed to petition for an EB-1A. Finally, an EB-1A is a desirable option because the petitioner can forego the labor shortage attestation process, which is usually required for lower-preference categories and can be a time-consuming process.

I.         STATUTORY REQUIREMENTS UNDER INA 203(b)(1)(A) AND 8 CFR 204.5(h)
II.        KAZARIAN V. USCIS’ TWO-PART ADJUDICATION ANALYSIS
III.       PART ONE: ANALYSIS OF EVIDENCE SUBMITTED UNDER 8 CFR 204.5(h)(3) AND (4)
IV.       PART TWO: FINAL MERITS DETERMINATION UNDER 8 CFR 204.5(h)(2) AND (3)
V.        EB-1A DOCUMENTS AND PROCEDURE
VI.       OTHER GENERAL EB-1A TIPS
VII.      WHAT CAN YOU EXPECT FROM VISATOPIA?

I.         STATUTORY REQUIREMENTS UNDER INA 203(b)(1)(A) AND 8 CFR 204.5(h)

Under INA 203(b)(1)(A), the beneficiary is eligible for EB-1A classification if (1) she has extraordinary ability demonstrated by sustained national or international acclaim in the sciences, arts, education, business, or athletics, and her achievements have been recognized in the field of expertise through extensive documentation, (2) she seeks to enter the U.S. to continue work in the field of expertise, and (3) her future stay will confer substantial benefits to the U.S.

The first requirement, under 8 CFR 204.5(h), must include evidence of either (a) a one-time achievement or major, internationally recognized award, such as the Nobel Prize or an Olympic Gold Medal, or (b) at least three of the following statutory criteria:

1.         Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field.
2.         Documentation of membership in associations in the field that require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields.
3.         Published material about the petitioner in professional or major trade publications or major media, relating to the petitioner’s work in the field.
4.         Evidence of the petitioner’s participation, either individually or as part of a panel, as a judge of the work of others in the same field.
5.         Evidence of the petitioner’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.
6.         Evidence of articles in the field, in professional or major trade publications, or other major media.
7.         Evidence of the display of the petitioner’s work in the field at artistic exhibitions or showcases.
8.         Evidence that the petitioner has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
9.         Evidence that the petitioner has commanded a high salary, or other significantly high remuneration for services, in relation to others in the field.
10.       Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

If any of the standards do not readily apply to the petitioner’s occupation, the petitioner may submit comparable evidence.

The second and third requirements, whether the petitioner intends to continue work in her field in the U.S. and whether she will confer prospective substantial benefits to the U.S., are relatively less difficult to prove. As there is no standard rule as to what will substantially benefit the U.S., the reviewing immigration officer may use his or her own discretion to determine if this requirement has been met. Both of these requirements can usually be demonstrated through the petitioner’s personal statement of intent, a pending job offer, or reference letters.

Adjudication of whether a petitioner satisfies the first requirement, however, is a bit more involved and is reviewed under a two-part analysis set forth by the 9th Circuit U.S. Court of Appeals in Kazarian v. USCIS (2010).

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II.        KAZARIAN V. USCIS’ TWO-PART ADJUDICATION ANALYSIS

Prior to 2010, to meet the first requirement for EB-1A eligibility, a petitioner’s submitted evidence only needed to satisfy three of the ten aforementioned statutory criteria. By meeting at least three of the criteria, the petitioner’s sustained national and international acclaim, as well as her belonging to the small percentage at the top of the field, were deemed established.

In Kazarian v. USCIS, the Court established a two-part adjudication analysis for determining whether a petitioner meets the first requirement for EB-1A classification. First, the reviewing immigration officer must determine whether the petitioner has received a major, internationally recognized award or, alternatively, has met at least three of the aforementioned statutory criteria by a preponderance of the evidence (i.e., is more likely than not). Second, the reviewing immigration officer must consider all of the evidence in its totality in making a final merits determination of whether the petitioner’s submitted evidence establishes that she has a level of expertise indicating that the individual is one of a small percentage who has risen to the top of the field, and has sustained national or international acclaim and achievements that have been recognized in the field.

In this case, Poghos Kazarian, an Armenian citizen, filed a petition for an EB-1A claiming that he was a theoretical physicist of extraordinary ability. Dr. Kazarian was a recent Ph.D. graduate who entered the U.S. as a visitor and volunteered at a community college. His petition was denied by the USCIS, which found that Dr. Kazarian satisfied none of the criteria for EB-1A eligibility. His petition only highlighted his high school and college diplomas with honors, memberships in non-merit-based organizations, and letters of reference that underscored that Dr. Kazarian was only a young professor with potential to rise to the top of his field, as opposed to a professor who is already at the top of his field.

Dr. Kazarian appealed his denial, which was subsequently denied by the USCIS Administrative Appeals Office (AAO). The AAO stated again that Dr. Kazarian had failed to meet any of the statutory criteria for EB-1A eligibility. Dr. Kazarian then filed a complaint in the U.S. District Court, which the USCIS responded to with a successful motion for summary judgment. Dr. Karzarian pursued an appeal in the 9th Circuit U.S. Court of Appeals. Although the Court criticized the AAO for arbitrarily interpreting the publication of scholarly articles criteria to include a consideration of the research community’s reaction to those articles, the 9th Circuit U.S. Court of Appeals ultimately agreed with the District Court’s decision.

In criticizing the AAO, the Court further reasoned that evidence not relevant to reviewing a petitioner’s satisfaction of three of the ten statutory criteria may still be relevant to what the Court called a “final merits determination of whether a petitioner is at the top of his or her field of endeavor.” The Court also stated that when a petitioner satisfies at least three of the required criteria, USCIS must then determine whether the evidence submitted “demonstrates both 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’[…] and ‘that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.”

The decision ultimately established what has since been referred to as the Kazarian two-part analysis. The two-part analysis has resulted in inconsistent decisions by reviewing immigration officers. By creating a second “final merits determination,” the Kazarian decision allows individual interpretation by reviewing immigration officers. Since the decision, immigration officers have been accused of improperly characterizing submitted evidence as inadequate and imposing additional individual requirements that are not required by any statutes or regulations.

However, demonstrating eligibility for EB-1A classification is still very much possible, so long as the petitioner preemptively anticipates common reasons for denials or requests for additional evidence, and effectively proves that she satisfies both parts of the two-step analysis.

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III.       PART ONE: ANALYSIS OF EVIDENCE SUBMITTED UNDER 8 CFR 204.5(h)(3) AND (4)

In Part One of the analysis, the reviewing officer is not supposed to make a determination of sustained national or international acclaim. Part One is reserved for considering the quality and caliber of the evidence put forth to support (a) the receipt of a one-time achievement or major, internationally recognized award, such as the Nobel Prize or an Olympic Gold Medal, or (b) meeting at least three of the ten statutory criteria. The following is a list of aspects to consider in submitting evidence for each of the ten criteria.

If any of the standards do not readily apply to the petitioner’s occupation, the petitioner may submit comparable evidence, which should specifically demonstrate why the statutory standard is not readily applicable to her occupation and how the evidence is comparable to what is typically required to satisfy that statutory standard.

1.         Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field.

Documentation should indicate that the petitioner, not her employer, was the recipient of the major prize or award. Documentation should also provide at least some information about the criteria for granting the major prize or award, as well as the singularity, significance, and prestige of the particular prize or award in the field.

This may be shown, for example, by a letter from the decision-making committee or information about the qualifications for the award. The prize or honor should not be widely awarded to numerous recipients and it must be national or international in scale and prestige. Most academic scholarships, fellowships, assistantships, or grants, as well as most team awards or local awards are insufficient to meet this standard.

2.         Documentation of membership in associations in the field that require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields.

Documentation should demonstrate that membership in the organization is based on outstanding achievements or significant merit in the field. Documentation should also distinguish between membership levels and their corresponding requirements, if there are such levels.

Membership should not be based solely on a yearly fee or subscription, a level of education or years of experience, or a requirement for employment in certain occupations (e.g., union membership).

3.         Published material about the petitioner in professional or major trade publications or major media, relating to the petitioner’s work in the field.

Published materials should specifically be about the petitioner’s work or research in the field, not merely about the petitioner’s employer or an organization in which she is involved. Articles that cite to the petitioner’s work should be substantial and not merely part of a list of citations to other works. Published materials should not have been created for the purpose of promoting or selling any product or service.

Documentation of materials in professional publications should demonstrate that the publication is indeed a professional publication, usually by showing relatively wide online or print circulation, the publication’s target audience, as well as the title, date, and author of the citing publication. Publications should not be mere press releases prepared by journals publishing the petitioner’s work or re-prints of their corresponding abstracts. Publications should instead be by independent journalists about the petitioner

4.         Evidence of the petitioner’s participation, either individually or as part of a panel, as a judge of the work of others in the same field.

Evidence should demonstrate that the petitioner has been invited to judge the work of others in the field, and that the petitioner actually followed through in participating as a judge of the work of others in the field.

Examples include peer reviewing for a widely-circulated scholarly journal evidenced by an invitation to review and proof of completion of the review, or serving as a member of the final Ph.D. dissertation decision-making committee evidenced by departmental records.

5.         Evidence of the petitioner’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.

Evidence must demonstrate that the original work constitutes major, significant contributions to the field. Evidence merely showing that the work was funded or published is insufficient. Similarly, evidence simply showing that the work is original is insufficient.

Usually, this requirement may be shown through letters from recommendation in which the recommenders articulate the specific impact and influence of the original work. Examples of “major significance” include presenting at a major academic symposium, provoking widespread commentary or recognition from others in the field, or citations illustrating the authority of the work.

6.         Evidence of authorship of scholarly articles in the field, in professional or major trade publications, or other major media.

Evidence should demonstrate that the scholarly article speaks to original research, experiments, or theory. For fields that do not have traditional publications of scholarly work, evidence should demonstrate that the claimed scholarly articles appeared in publications that target those having insightful knowledge in the same field.

Quality of the scholarly articles, as opposed to the quantity, is given more weight. Evidence should also include any significant numbers of citations.

7.         Evidence of the display of the petitioner’s work in the field at artistic exhibitions or showcases.

Evidence should show that the work that was displayed was indeed the petitioner’s work. Evidence should also demonstrate that the displays, whether virtual or physical, were artistic and were either exhibitions (defined by Merriam-Webster as public showings) or showcases (defined by Merriam-Webster as a setting, occasion, or medium for exhibiting something or someone especially in an attractive or favorable aspect).

8.         Evidence that the petitioner has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.

Evidence should demonstrate that the petitioner’s role is, or was, leading or critical. A leading role is one where the petitioner acted as a leader, which may be established by the petitioner’s title and letters specifically detailing her responsibilities and management structure.

A critical role is one where the petitioner contributed in a significantly important way to the establishment’s activities, which may be established by demonstrative and specific letters from those with personal knowledge of the petitioner’s role. A critical role may not simply be purported by the petitioner’s title.

An establishment may have a distinguished reputation regardless of its relative size or length of existence. Merriam-Webster defines “distinguished” as marked by renown or excellence, or befitting a renowned person.

Evidence for this criterion must include a letter from the petitioner’s employer establishing the petitioner’s role and/or the establishment’s distinguished reputation.

9.         Evidence that the petitioner has commanded a high salary, or other significantly high remuneration for services, in relation to others in the field.

Evidence may include, but is not limited to, compensation surveys for the petitioner’s geographical location or position, justifications within the organization for compensation above the averages listed in the compensation surveys, or statistics from the Bureau of Labor Statistics and the Department of Labor.

Remuneration refers to a broad umbrella of anything that recompenses or compensation for one’s services, which may include salary, wages, bonuses, or commission. However, if the petitioner submits her base salary as well as bonuses and commission, then statistics or surveys for the petitioner’s geographical location, position, and compensation must reflect the typical base salary as well as bonuses and commission of others in the field. A false comparison or inaccurate analogy between the petitioner’s proposed remuneration and the statistics is detrimental to proving this criterion.

Usually, an annual salary, including bonus, that is above $1 million is deemed significantly high remuneration for services, but must still be compared to the typical salary that others in the field command.

10.       Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Evidence should demonstrate a high volume of sales of the respective medium and the petitioner’s commercial success relative to others involved in similar activities in the same performing art.

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IV.       PART TWO: FINAL MERITS DETERMINATION UNDER 8 CFR 204.5(h)(2) AND (3)

If the petitioner satisfies Part One of the analysis, the reviewing officer must consider the totality of the evidence to determine whether the petitioner has demonstrated by a preponderance of the evidence (i.e., more likely than not) that the petitioner (1) has a level of expertise indicating that the individual is one of a small percentage who has risen to the top of the field, and (2) has sustained national or international acclaim and achievements that have been recognized in the field.

Part Two is what allows the reviewing immigration officer a level of discretion that makes their decisions a bit less predictable. Accordingly, the immigration officer relies on his or her own discretion and consideration of the totality of the evidence to determine whether the petitioner is one who has risen to the top small percentage of her field and has sustained national or international acclaim.

For purposes of this part of the analysis, “sustained” is characterized by the beneficiary maintaining or persisting in making an effort to have such acclaim, especially over a long period of time. The USCIS does not provide any guidance on what length of time exactly satisfies the term, “sustained,” and accordingly, the petitioner may be very young in her career and still satisfy this aspect of the analysis.

If the petitioner received particular recognition for a certain achievement, the immigration officer will consider whether the petitioner continues to have the same or comparable level of acclaim and recognition in the field. If the petitioner does not continue to maintain a comparable level of acclaim after such an achievement, the petitioner likely fails to satisfy this part of the analysis.

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V.        EB-1A DOCUMENTS AND PROCEDURE

The petitioner’s EB-1A petition package must include the following forms and documents:

  • Form I-140 (Immigration Petition for Alien Worker);
  • Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative);
    • Only required if the petitioner is represented by an attorney.
  • Petition letter; and,
    • The petition letter acts as a comprehensive summary of the petitioner’s evidence and the reasons why the evidence demonstrates that the petitioner meets the requirements for EB-1A eligibility.
  • Supporting documentation, which may include:
    • Reference (recommendation) letters;
    • Letter of petitioner’s intent to continue work in her field;
    • Resume, awards, achievements, honors, etc.;
    • Publications and publication requests;
    • Evidence of significant citations to the petitioner’s work;
    • Invitations to review or judge manuscripts for publications;
    • Conference presentations and any corresponding invitations;
    • Evidence of memberships in any professional associations;
    • Evidence funding or grants for any relevant research projects;
    • Evidence of other past accomplishments and achievements; and,
    • Evidence that the petitioner has had a crucial or critical role in employment.

If the petitioner is already in the U.S. under another valid status, the petitioner may also file Form I-485 (Application to Adjust Status), which may be concurrently filed with the EB-1A petition to expedite consideration and processing of the adjustment application.

EB-1A petitions are also eligible for Premium Processing Services, which provides guaranteed processing of the petition 15 calendar days from the day the request is correctly received. If the USCIS requests additional evidence or a response to a notice, the response will also be processed within 15 calendar days from the day the response is correctly received. To apply for Premium Processing Services, the petitioner must submit Form I-907 (Request for Premium Processing Service) to the correct service center. Form I-907 may be filed concurrently with the Form-140 petition.

The petitioner can expect the following general timeline for the EB-1A process:

1.   Petitioner prepares and gathers necessary documents with attorney’s guidance.

2.   Petitioner or her attorney submits the petition package to the appropriate USCIS Service Center.

3.   USCIS issues official Notice of Receipt.

  • Usually 1-2 weeks after submission.

4.  USCIS processes petition.

  • Generally 3 to 9 months, but varies greatly depending on the case, the USCIS Service Center, and the Immigration Officer processing the case.
  • If under Premium Processing Services, within the guaranteed 15 calendar days.

5.  USCIS issues one of four possible actions after initial review:

a.  Notice of Approval,

  • Allows adjustment of status (Form I-485) if not already done concurrently.
  • Allows application for visa through consular processing overseas.

b.  Request for Evidence (RFE),

  • Immigration Officer requests additional evidence to address and support specific parts of the petition.
  • Petitioner may have up to 84 days after the date of the decision to respond.

c.  Notice of Intent to Deny (NOID), or,

  • Immigration Officer gives notice that case will be denied unless certain extra documentation is provided.
  • Petition may have up to 84 days after the date of the decision to respond.

d.  Notice of Denial.

  • USCIS includes explanation of why application denied.
  • Petitioner has 30 days after the date of the decision to file:
    • An appeal, if petitioner thinks USCIS’ denial was wrong.
    • A motion to reconsider, if petitioner wants another Immigration Officer to review the case.
    • A motion to reopen, if petitioner has evidence absent in the original application or response to an RFE that existed at the time of original filing.

Once the USCIS receives the petitioner’s response to an RFE or NOID, further action will generally occur within 60 days, but may take longer. The petitioner should ask for an update if none is provided by the USCIS within 60 days. If under Premium Processing Services, further action will occur within the guaranteed 15 calendar days.

Once the USCIS receives the petitioner’s appeal or motion to a Notice of Denial, the appellate authority may render one of three possible decisions: (1) agree with the appeal and amend the original decision; (2) disagree with the appeal and affirm the original decision; or, (3) remand the case back to the original reviewing office for further action. This adjudication process may take up to 270 days depending on whether the case is reviewed by a single appellate member or is referred to a three-member panel of the Board of Immigration Appeals.

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VI.       OTHER GENERAL EB-1A TIPS

Creating a strong EB-1A case requires providing probative evidence, a strategic approach, and a high level of attention to detail. The following are some general tips to consider in filing an EB-1A petition:

  • Strongly proving three criteria is better than trying to prove four or more criteria. Claiming other criteria and pointing to other less probative and less significant achievements opens the door for requests for additional evidence and questions regarding the strength of the petitioner’s primary criteria.
  • The petitioner’s field of expertise should be defined narrowly and accurately, so as to emphasize that the petitioner is at the very top of her field.
  • EB-1A petitions should focus on how the petitioner’s work and career have already positioned her in the small percentage of those who are at the top of the field. In other words, the petitioner should already be a prominent figure in the field, not merely a promising figure.
  • A strong reference letter from a moderately-known figure in the field is better than a mediocre letter from a very famous figure in the field whose credentials outshine the petitioner’s achievements.
  • All assertions in the petition should be supported by concrete evidence. For example, a claim that the petitioner received a lesser nationally or internationally recognized prize or award should be submitted with evidence regarding the petitioner’s receipt of the award as well as credible information regarding how many individuals receive the award and the criteria for eligibility.

These are general tips for typical EB-1A petitions. Potential petitioners should consult with one of the experienced immigration attorneys at Visatopia for more information about how any of the above information relates to a specific case.

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VII.      WHAT CAN YOU EXPECT FROM VISATOPIA?

Needless to say, filing a petition for an EB-1A can be daunting and confusing. Visatopia will ensure that your petition is filed efficiently and is at its strongest when it reaches the reviewing immigration officer’s hands.

Visatopia strives to handle its clients’ immigration matters with the utmost integrity, care, and professionalism. With a 95% overall approval rate and nearly a decade of experience in employment-based and business-oriented immigration issues, we are deeply committed to helping our clients obtain the best possible results every step of the way on their journey to achieving the American Dream.

Four features distinguish Visatopia from other firms:

  1. Our exceptional legal credentials, extensive knowledge, and breadth of experience enable us to outmatch our major competitors’ services;
  2. Our contingent flat fees, free initial consultation, and encouragement of open client communication without ever getting charged are all ways in which we keep ourselves accountable to our clients and deliver the best possible results at lower costs;
  3. Our policies of promptness and diligence allow us to provide a personal, attentive, and strategized approach in our clients’ immigration matters; and,
  4. Our firm is by immigrants and for immigrants. We are committed to our clients’ successful immigration and, accordingly, provide all-encompassing services to our clients to ensure that we take care of our clients from start to completion.

For the EB-1A process, you can expect at least the following services from Visatopia:

  1. Advise whether an EB-1A is appropriate for your matter;
  2. Provide guidance on selecting recommenders and collecting reference letters;
  3. Review, edit, and refine reference letters to best strengthen your application;
  4. Guide you in collecting and organizing the proper documentation and evidence to enhance your application;
  5. Draft a probative petition letter that cohesively presents the strength of your case along with its supporting evidence;
  6. Draft a polished statement of the petitioner’s intent to continue working in the same field of expertise;
  7. Provide frequent updates and communication;
  8. Submit your complete application, after your review and approval, to the appropriate USCIS Service Center;
  9. Track your case and update you on the processing status of your case;
  10. Ensure that you respond to any additional requests for evidence or information related to your case;
  11. Provide guidance on whether an appeal or motion is appropriate if your case is not approved; and,
  12. Follow through with work related to appeals and motions if you choose to pursue those routes.

Please refer to the EB-1A Flow Chart for a step-by-step guide to what you can expect from Visatopia throughout the representation and the EB-1A process.

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Read more about EB-1A status and Visatopia’s EB-1A services:

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