New USCIS Guidance for Evaluating Extraordinary Ability Visa Classification

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The U.S. Citizenship and Immigration Services (USCIS) has recently revised its Policy Manual (PM) to furnish USCIS officers with instructions regarding the assessment of eligibility requirements for the EB-1A (extraordinary ability) employment-based immigrant visa category.

While the legal prerequisites for EB-1 classification remain unaltered, the revised Policy Manual (PM) provides directives to USCIS officers regarding approaches for interpreting existing laws and regulations when processing EB-1 petitions. It's important to acknowledge that many details included in the updated EB-1A guidelines are not groundbreaking for attorneys who have repeatedly presented similar arguments in RFE responses, appeals, etc. The new guidance effectively encapsulates recent EB-1A court cases and responses to Requests for Evidence (RFEs), equipping USCIS with pertinent and contemporary evidence suitable for EB-1A cases in the 21st century (online publications!).

I.???????????????? Initial evidence of Extraordinary Ability

The first step of the evidentiary review is limited to determining whether the evidence submitted with the petition meets the regulatory criteria. The evidence must be comprised of either a one-time achievement (that is, a major internationally recognized award) or at least three of the ten regulatory criteria).

Criterion 1: Receipt of lesser nationally or internationally recognized prizes or awards:

??????????? Examples of qualifying awards may include, but are not limited to:

·??????? Certain awards from well-known national institutions or well-known professional associations (this is new as in the past USCIS did not accept awards from employers, institutions etc. But it remains to be seen what would qualify for an award from well-known national institutions, so tread carefully here.)

·??????? Certain doctoral dissertation awards; and

·??????? Certain awards recognizing presentations at nationally or internationally recognized conferences.

Relevant consideration for this criterion: the criteria used to grant the awards or prizes; the national or international significance of the awards or prizes in the field; the number of awardees or prize recipients and limitations on competitors.

Criterion #2: Membership in Associations in the field for which classification is sought:

·??????? A membership in certain professional associations; and

·??????? A fellowship with certain organizations or institutions.

Relevant considerations: membership requires outstanding achievements in the field, and the level of membership must show that in order to obtain that level, recognized national or international experts judged the person as having attained outstanding achievements in the field, general membership in an international organization for engineering and technology professionals may not meet requirements; fellow level requirements, may be qualifying. Tip: must read the organization's bylaws and provide a copy of the bylaws as part of the petition.

Criterion #3: Published material about the person in professional or major trade publications or other major media relating to the person’s work in the field.

·??????? Professional or major print publications (newspaper articles, popular and academic journal articles, books, textbooks or similar publications) regarding the person and the person’s work.

·??????? Professional or major online publications (welcome to the 21st Century!), regarding the person and the person’s work; and

·??????? Transcripts of professional or major audio or video coverages of the person and the person’s work.

Considerations: For this criterion, it is welcomed that online publications can be considered “published material.” However, the PM states that the published material needs to discuss the “the value” of the person’s work and contributions. Here, the USCIS is imposing novel requirements, not part of the EB-1A regulations, which makes it a much higher burden to meet this criterion.

Criterion #4: the Person’s participation, either individually or on a panel as a judge of the work of others.

·??????? Peer reviewing for a scholarly journal, accompanied by proof that the review was actually completed;

·??????? Peer review of abstracts or papers submitted for presentation at scholarly conferences in the respective field;

·??????? Serving as a member of Ph.D. dissertation committee that makes the final judgment as to whether a candidate’s body of work satisfies the requirements for a doctoral degree;

·??????? Peer review for government research funding programs.

Considerations: the petitions must show that the person actually participated in the judging of others, and the review must be completed.

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Criterion #5: The person’s original, scholarly, artistic, athletic, or business-related contributions of major significance in the field

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·??????? Published materials about the significance of the person’s original work;

·??????? Testimonials, letters, and affidavits about the person’s original work;

·??????? Documentation that the person’s original work was cited at a level indicative of major significance;

·??????? Patents or licenses deriving from the person’s work or evidence of commercial use of the person’s work.

Considerations: the person has made original contributions in the field, and the original contributions are of major significance. The PT states that original contributions of major significance must be to the field, instead of IN the field, which again makes it a much higher burden to meet this criterion.

A person’s work that was funded, patented, or published, while potentially demonstrating the work’s originality, will not necessarily establish, on its own, that the work is of major significance. However, published research that has provoked widespread commentary on its importance from others working in the field, and documentation that it has been highly cited relative to other’s work, may be probative of the significance of the person’s contributions in the field of endeavor.

Letters from experts: letters should specifically describe the person’s contribution and its significance to the field and should also set forth the basis of the writer’s knowledge and expertise.

Criterion #6: The person’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.

·??????? Publications in professionally-relevant peer-reviewed journals; and

·??????? Published conference presentations at nationally or internationally recognized conferences.

In evaluating whether a submitted publication is a professional publication or major media, relevant factors include the intended audience (for professional journals) and the circulation or readership relative to other media in the field (major media).

Considerations: for other fields, a scholarly article should be written for learned persons in that field. (“Learned” is defined as “having profound knowledge gained by study”).

Criterion #7: Display of the person’s work in the field at artistic exhibitions or showcases.

·??????? The work that was displayed is the person’s work product; and

·??????? The venue (virtual or otherwise) was an artistic exhibition or showcase

Criterion #8: The Person has performed in a leading or critical role for organizations or establishments that have a distribution reputation.

Examples of lead or critical roles may include:

·??????? Senior faculty or research position for a distinguished academic department or program;

·??????? Senior research position for a distinguished non-academic institution or company;

·??????? Principal or named investigator for a department, institution, or business that received a merit-based government award;

·??????? Member of a key committee within a distinguished organization;

·??????? Founder or co-founder or contributor of intellectual property to a startup business that has a distinguished reputation.

Considerations: For a leading role, the evidence must show that the person is (or was) a leader within the organization, or establishment, or a division, or department. For a critical role, the officers look at whether the person has contributed in a way that is of significant importance to the outcome of the organization of the establishment’s activities or those of a division or department of the organization or establishment.

Startup businesses: Officers may consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders.

Criterion #9: The person has commanded a high salary, or other significant high remuneration services, in relation to others in the field.

·??????? A credible contract or job offer showing prospective salary or remuneration may establish that the person has been able to command such compensation;

·??????? Tax returns pay statements, or other evidence of past salary or remuneration for services;

·??????? Comparative wage or remuneration data for the person’s field, such as geographical or position-appropriate compensation surveys;

·??????? The Bureau of Labor Statistics;

·??????? The Department of Labor’s Career One Stop Website.

Criterion #10: Commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

·??????? Focus here is on the volume of sales and box office receipts as a measure of the person’s commercial success in the performing arts.

Note: Cassette, compact disk?? We are back to the 20th century!

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II.????????????? Final Merits Determination

In the second step of the analysis, the officer should consider the petition in its entirety to determine eligibility according to the standard. It has been my experience, that cases where the person satisfies only 3 of the criteria, do not meet the final merits determination analysis and the case will be denied (there are a few very limited exceptions here). ?In other words, the final merits determination pushes the applicant to satisfy as many criteria as possible, in order to ensure a favorable decision.

The following are examples of situations where evidence in the record may help officers evaluate the quality of the initial evidence:

·??????? The person has published articles in particularly highly-ranked journals

·??????? Evidence demonstrating that the total rate of citation to the person’s body of published work is high relative to others in the field, such as the person has a high h-index;

·??????? The person’s employment or research experience with leading institutions in the field.

·??????? The person has received unsolicited invitations to speak or present research at nationally or internationally recognized conferences in the field.

·??????? The record establishes that the person is named as an investigator, scientist, or researcher on a peer-reviewed and competitively-funded U.S. government grant or stipend for Stem research.

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Final thoughts: Apart from a few clarifications, this guideline doesn't introduce anything new for attorneys who routinely submit EB-1A petitions. As previously mentioned, we've been presenting similar arguments to USCIS and in federal lawsuits for quite some time now. It's important to note that these guidelines don't simplify the EB-1A process; in some cases, USCIS is actually setting higher standards than what the regulations require.

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With that being said, the best advice I can offer to potential EB-1A petitioners is to approach this as more than just a transactional process. It's not like filling out a form and checking a few boxes as you would with a PERM or an H1B application (not trying to simplify PERM and H1B!). Instead, consider it a long-term journey that not only sets you on the path to EB-1A eligibility but also enhances your career.

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Dobrina Ustun,

Immigration Attorney

[email protected]