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The United States employment-based immigration visa program offers alternative mechanisms for foreign nationals to become permanent residents in the United States Based on the foreign national’s education and experience, special qualifications and reasons to wish to immigrate to the United States the employment based immigration program has five different preferences that establish priority with which interested immigrants may qualify for an employment-based visa. The EB-1 is the highest (first) preference employment-based visa category reserved for foreign nationals with extraordinary credentials and accomplishments in business, sciences, education, arts or sports that are perceived by the policy makers to be of particular value to the United States national interest.
Those who are eligible to qualify for the EB-1 visa program gain notable advantage over other employment and non-employment-based visa applicants from the same country and at the same time. While annual quotas and large pools of interested immigrants may cause certain permanent residence visa candidates to wait for several years (sometimes decades) for the opportunity to obtain a visa, the EB-1 visa category is usually ‘current’ with visa allowances readily available for qualified applicants. Even visa candidates India or China who usually wait the longest in all immigration visa categories because of the number of interested immigrants as compared to annual quota allowances, the EB-1 visa application route offers the shortest wait period as compared to other employment based visa categories.
Another notable advantage of the EB-1 immigration visa petition process is that it does not include as a prerequisite the expensive, time consuming, and often uncertain Labor Certification requirement.
The EB-1 visa category has three distinct sub-categories: EB-1A for those with extraordinary ability; EB-1B for outstanding researchers and professors in academia; and EB-1C for managers and executives transferring from a foreign company to work for an affiliate in the United States. This article will focus on EB-1A visa eligibility qualifications, supporting documentation requirements, and application process available to foreign nationals who have distinguished themselves in their work. (8 CFR § 204.5)
The EB-1A immigrant visa is a very exclusive visa category reserved for foreign nationals who wish to become lawful permanent residents (LPR) of the United States because of their “extraordinary ability” in the arts, sciences, athletics, education or business. The EB-1A visa is appropriate for the few who are at the very top of their respective professions/fields and are willing to continue contributing in their area of extraordinary ability while living and working in the United States. The special requirements of the EB-1A immigration visa are very difficult to satisfy and the EB-1A petition is subject to a very stringent scrutiny by the reviewers from the United States Citizenship and Immigration Service (USCIS). If the visa applicant is successful in meeting the exacting standards of EB-1A, however, he/she can self-petition for permanent residency status without a sponsoring employer or a job offer, and without risking the uncertainty that comes with the need for a Labor Certification process that is required under other employment-based immigration visa regimes.
Foreign nationals residing in or outside of the United States may apply for EB-1A visa, if they can demonstrate their “extraordinary ability in the sciences, arts, education, business or athletics through sustained national or international acclaim,” and can support their claim of “extraordinary ability” through independently verifiable documentation that corresponds to the standards established by the USCIS.
Whether or not a foreign national meets the “extraordinary ability” test envisioned by the U.S. Immigration and Nationality Act as reflected in USCIS regulations is often a matter of USCIS reviewer’s discretion, who applies subjective criteria when comparing the applicant’s specific accomplishments against accomplishments of others in the applicants field of expertise, and select for approval only those who can present documented evidence of sustained acclaim, over time, that puts them into a very small group of professionals, who are universally considered being at the very top of their field. In addition to this “sustained acclaim” requirement, a successful EB-1A applicants must also demonstrate his/her intent to continue to work in the United States in the area of the extraordinary ability.
Foreign nationals applying for the EB-1A immigration visa can support their application by either presenting evidence of “once-in-a- lifetime extraordinary achievement”, such as an a Nobel Prize, an Olympic medal, a Pulitzer Prize, a Grammy Award, a Wimbledon championship title, or an Academy of Motion Picture Arts and Sciences Award (the Oscar. Absent such rare achievement, the applicant may demonstrate his/her “extraordinary ability” and acclaim by meeting at least three of the ten demanding criteria listed below:
The key differentiator for the EB-1A visa petition eligibility is the applicant’s association with unique, selective and highly distinguished accomplishments that must be provided as part of the petition documentation to demonstrate that the applicant is indeed at the very top of his/her field.
In addition to supporting the “extraordinary ability” eligibility claim and demonstrating the professional acclaim for the applicant, the documents filed as part of the EB-1A visa petition materials applicant must also show the clear intent to continue working and making contributions in her/his field, as a lawful permanent resident in the United States. To that end, in order to be successful, the application must show that the applicant’s work is of substantial future benefit to United States’ national interests in culture, sports, education or business.
Although, theoretically, the EB-1A visa petition application requires that the petitioner meet and, therefore, provide support for only three out of the ten criteria listed by USCIS, three criteria is a minimum requirement. Given the high scrutiny of the EB-1A petitions in general and the discretion afforded to the USCIS reviewer who considers the application, if the applicant can demonstrate that he/she can meet more than three criteria, he/she should consider doing so to provide additional alternative support if one of the criteria presented does not rise to the ‘extraordinary accomplishment’ level. Further, although the EB-1A visa petition does not require a sponsorship by a U.S. employer, if the foreign national applying for EB-1A visa status has an employer or a prospective employer that is willing to support the petition, such employer may sponsor the foreign national’s EB-1A application by co-signing it, including with it the evidence of a job offer and a letter of support.
The EB-1A visa petition application is reviewed by the USCIS official and is subject to exception scrutiny. If the applicant is the recipient of a once-in-a-life-time extraordinarily prestigious award (e.g. the Nobel Prize, an Olympic medal, Pulitzer Prize, a Grammy Award, a championship title from Wimbledon, or an Academy Award (the Oscars), the permanent resident EB-1A petition is almost always approved, as long as the applicant demonstrates the genuine intention to continue her/his work in furtherance of the United States interests. If the applicant, however, supports the EB-1A petition with evidence of other significant, albeit lesser, achievements, the USCIS review of the application will go through a two-tier analysis:
(1) the preponderance of evidence in support of the applicant’s extraordinary ability, and
(2) holistic merit determination.
The first-prong of the review is focused on the individual applicant’s achievements and how they meet the EB-1A USCIS stated requirements, while the second-prong looks at the applicant’s status in his/her field, holistically, comparing him/her to others who are presumptively extraordinary in the field and assessing the weight and merit of the evidence provided in support of the extraordinary ability claims.
What constitute the significant documented evidence for purposes of this review varies based on the category used by the foreign national in support of the application and on the field, in which he/she claims ‘extraordinary ability’; while the merit of this evidence depends on its overall significance. Every EB-1A petition is unique in how it reflects the applicants’ abilities and contributions.
Artists usually support their applications by relying on the category of original contributions of major significance, where the challenge is not to only show that original contributions have been made, but also that these contributions made am impact of a significant degree. Artists with “extraordinary ability” would also usually rely on their commercial success in the performing arts, where the focus is on sales volumes and box office receipts and how these metrics compare to other successful artists in similar fields. Artists also include display of their work in exhibitions or showcases category, as part of their application, the merit of which is often assessed based on the prestige of the venue – the artwork displayed at the Metropolitan Museum of Art in New York City would support the EB-1A visa application better than the work that was shown in the art gallery in downtown Denver, Colorado; a play that was performed at a Broadway theater or a musical show that stayed open at the Caesar’s Palace in Las Vegas for a year’s run would have greater weight than a play at a regional university’s playhouse. Critical reviews about the artist would fall into the category of published material about the applicant, and whether the review is in the Rolling Stones magazine v. hometown newspaper would speak to the merit of the evidence.
Another category that is sometimes used in support of an artist’s petition for an EB-1A visa is being a member of a distinguished and highly selective organization such as the Academy of Motion Picture Arts and Sciences, the British Academy of Film and Television Arts, or their equivalents in other countries; or being a member of a invited jury at an international film or art festival (e.g. Cannes Film Festival, the Booker Prize Committee).
Scientists applying for EB-1A visa would usually be expected to support their applications with the significance of their original scientific findings (original contributions). While it is expected that an accomplished scientist would be making such contributions in ordinary course of the work, to be considered significant, such original contributes would have to be peer reviewed and widely accepted in the scientific community, as seminal work. A discovery of a new variety of a bird of a known species may be important, but the discovery of a whole new species of birds or a previously unknown type of a flying dinosaur would, on merit, more likely to be considered as a contribution of ‘major significance’.
Scientists also often use the category of scholarly articles published in well-respected journals as supporting evidence of their ‘extraordinary ability’. To be considered of major significance, however, such publication have to be of the highest tier in the field as demonstrated by its Impact Factor (e.g. New England Journal of Medicine, the academic journal of the National Science Foundation, or the Harvard Law Review) and the article must be viewed as significant by the applicant’s peers as evidenced by the number of times it was cited by others (self-citations and citations of co-authors is not a problem but it would add to the merit of the article).
Memberships in prestigious associations is another category often used by scientists to support their permanent residence EB-1A visa petitions. Membership in associations that are open to all members of the field, however, would not meet the EB-1A visa merit criteria. Only memberships in exclusive organizations that elect their members selectively on the basis of their outstanding achievement would qualify. For example, a membership in the National Academy of Sciences would have a much higher standing for EB-1A visa petition evaluation purposes than the membership in the society of professional engineers, where every licensed engineer in welcomed. An elected position of leadership in an organization may serve as a measure of the applicant’s extraordinary ability, even if the organization is not exclusive, if such position of leadership is elected by peers based on professional merit. The scientist’s EB-1A application’s merit may be further buttressed by serving on an editorial review board for a major publication or by being invited by a government organization to assist it in review and allocation of funds for competitive grant applications (e.g. National Institute of Health or the National Science Foundation).
In sports, athletes and coaches may use their membership or coaching on national teams as evidence of performing in critical role in distinguished organizations; or may use being invited to judge a national or an international competition as evidence of their distinguished status. Having high ranking in the competitive sport (e.g. ATP tennis rankings) may have merit, but winning medals or championships in national or international competitions would offer greater may support for EB-1A visa application, among other accomplishments.
While certain EB-1A criteria may be satisfied by a single occurrence or event (e.g. having your paintings displayed in a major national museum), others may require multiple occurrences to fully satisfy the category. For example, if a petitioner is using performing in a leading role in distinguished organizations as one of the three EB-1A qualification criteria, she/he should demonstrate multiple leading roles in multiple prestigious organizations to satisfy the criteria. Similarly, if the applicant relies on scholarly articles as one of its three categories or as evidence of significant contribution, these articles need to be numerous to meet the scrutiny of the final merit review.
When relying on published materials about the applicant, as evidence of his/her “extraordinary ability,” for EB-1A purposes the prestige and selectivity of the publication contributes to its materiality for the merit review purposes. When a national publication with a sophisticated editorial review board and critical standards, such as the New York Times, Wall Street Journal, the Economist or a major media outlet like CNN or BBC publish an article/broadcast a story about the applicant, describing her/him as the leading artists, scientist, athlete or an entrepreneur in the field, it would naturally have more significance for merit review purposes than a casual mention of the work by a university or a regional publication.
While the receipt of a major international award, like the Grand Prix at the Cannes Film Festival makes more holistic scrutiny of the accomplishments of the EB-1A applicant unnecessary, a receipt of a lesser nationally or internationally recognized prize or an award for excellence in the field may support the application as well but will be subject to further scrutiny. To be effective, such award should be deemed significant in country of origin and must be highly competitive in the field. In assessing the merit of the award, the USCIS reviewer will be considering the status of the award in the jurisdiction where it was granted and in the surrounding geographies, the quality of the field of competitors for the award, the quality of jury and the selectivity of the process.
Another highly subjective category is the applicant’s commanding of a high renumeration in relation to others in the field. Generally, a salary and a bonus package in excess of $1 million U.S. dollar equivalent may satisfy this requirement, but only if others in the field receive much more modest compensation.
In gathering evidence for the immigrant visa petition, foreign nationals should not only focus on the weight and sufficiency of such evidence to demonstrate their level of excellence in their field, but as part of the application must also endeavor to put this evidence into the relevant context for the USCIS reviewer.
The applicant should not assume (and usually it is not the case) that the USCIS official who is reviewing the application is a subject manner expert in the field with respect to which the applicant is claiming “extraordinary ability,” nor even that the reviewer is familiar with the field. The application and its supporting evidence must stand on its own to support a meaningful review by the USCIS. The best way to achieve this objective is put the evidence in the context to assist the USCIS reviewer to properly assess both the evidence and the efficacy of its sources. For example, the applicant should not assume that the reviewer is familiar with the merit or significance of the publications on which the applicant is relying. Instead to buttress the application and the weight of the evidence presented, the applicant should include information about the publication’s history, the quality of its editorial board, its international or national standing and its circulation. Similarly, if the applicant is relying on certain prizes or awards received to support the “extraordinary ability” claim, the application should reflect the competition’s standing in the field and the selectiveness of the process. While the applicant can provide this information, as part of his/her submission, it would carry much stronger evidentiary value if presented through reliable independent sources (e.g. an article about the merits of the competition in a reputable trade journal would have a greater merit than the applicant’s description of the competition).
Another important evidentiary support may be provided via letters of recommendation from recognized luminaries in the field. Such letters should demonstrate the familiarity of the writer with the applicant’s work and offer comments on the work’s significance to the field.
As stated elsewhere, in reviewing the EB-1A petition, the USCIS official will first determined whether the application includes and provides sufficient evidence of at least three of the ten EB-1A qualification criteria, but then will proceed to a more holistic merit review. This second level of review is unavoidably subjective, affording the reviewer considerable discretion on the final disposition of the EB-1A petition. The USCIS reviewer will evaluate the submission in its totality and review the applicant’s merits against other known leaders in the field. The standard of review for EB-1A “extraordinary ability’ is a nebulous “sustained national or international acclaim” and the degree to which the applicant’s accomplishments have been recognized in his/her field of expertise. It is worth noting that the acclaim must be current at the time of the EB-1A petition filing to qualify the applicant for the EB-1A visa. An applicant who in the past demonstrated extraordinary ability but failed to sustain that level of excellence in more recent years is likely not to survive the final merit determination review. All said and done, the reviewer must determine whether, at the time of the EB-1A application review, the foreign national is among a very small percentage of practitioners who have risen to the very top rank in their field.
Although 675,000 immigration visas are permitted under the U.S. Immigration and Nationality Act, only 140,000 are available for employment-based immigration per year (AILA.2.1). Visas issued to spouses and children of foreign nationals who seek immigrant visas in conjunction with their employment status, otherwise known as “derivative applicants”, also count towards this overall 140,000 limitation (AILA.2.1). The United States Department of State (the DOS) which oversees the immigration process further limits the number of immigrant visas that may be approved in any fiscal quarter to 27% of the annual quota allowance which is a maximum of 37,800 immigrant visas that can be granted per quarter (AILA.2.2). Of the 140,000 visas allowed under various employment-based immigrant statuses, 40,000 are reserved for the EB-1 preference.
In addition to these annual and quarterly limitations, applicants are also subject to a per-country quota, where only 7% of all immigrant visas may go to applicants from any given country (AILA.2.3). It should be noted that this per-country limit is not the actual number of visas that any country is entitled to, but rather the absolute maximum that the petitioners from a country may receive in a given government fiscal year (AILA.2.4). Another complication that may impact applicants from countries that have immigrants with multiple citizenships is that a country’s annual total visa allotment is “charged” for all visas issued to applicants born in that country, whether or not they are a citizen of that country at the time they are applying for their immigration status in the United States (AILA.3.6). For example, an immigration visa issued to a UK citizen born in Pakistan who immigrated to the U.K. with his family as a child, under the British Commonwealth rule, and who is now seeking an employment based permanent resident status in the United States would count toward Pakistan’s annual total allotment and not to the UK’s annual limit. Although the point is often challenged, the Department of State maintains that the current per-country annual allotments for immigration visa is nondiscriminatory, despite the fact that people born in certain countries that have large populations and a disproportionately large number of interested immigrants to the United States (e.g., China, India, Mexico, and the Philippines) face significantly longer wait times than applicants from most other countries (AILA.3.3).
In addition to the worldwide quota and per-country limitation, the United States utilizes a ranked preference system for its employment-based visas, as follows:
Unused visa allotments under these different preferences may be re-allocated to other preference categories as further described in the USCIS regulations.
In determining the order of petition-approved applicants to receive an immigrant visa, a system of “priority dates” is used to effectively place an applicant in the processing queue (AILA.6.3). The foreign national’s priority date is set to the applicant’s immigration visa petition receipt (not submission) date, and it determines the applicant’s place in line for processing relative to other applicants who are applying to the same country and at the same preference level (AILA.6.4). The earlier the priority date, the sooner the priority date has the opportunity to become “current”, at which point, assuming the immigration visa petition has been approved, the foreign national can begin the next steps in the immigrant visa processing(AILA.6.4).
A category is regarded as “current” when the availability of immigrant visas in the category exceeds the then current demand, and thus there is no waiting period for processing (AILA.6.5). When a country is oversubscribed (i.e. that the number of immigrant visa applicants exceeds the per-country limitation), a cut-off date is established and foreign nationals are placed on a visa waiting list based on their priority date (AILA.7.3). For example: if there are 20,000 EB-1 applicants worldwide when there are 40,040 EB-1 immigrant visas available, all applicants will be “current”, if however there are 20,000 E-1 pending applications against 10,000 EB-1 available immigration visas, only the 10,000 with higher priority dates would be “current” and able to move to the next step in the application process, while others will have to wait.
DOS publishes two charts relevant to the currency of priority dates as part of its quarterly Visa Bulletin, which can be found on the DOS website: Dates for Filing chart and Final Action Dates chart. The charts are the up-to-date guides on which priority dates are current. The foreign nationals with immigrant visa petitions with priority dates that land before the Final Action Dates listed in the chart are considered “current”. The foreign nationals with “current” priority dates based on Dates for Filing may start preparing for immigrant visa processing as instructed by the NVC (AILA.8.4). Yet, the immigrant visas can only be granted when the foreign national’s priority date is “current” under the Final Action Dates chart.
Except for individuals applying for immigration visas that are charged to China and India quotas which generally experience multi-year waits, EB-1, EB-2, and EB-3 preference levels remain generally “current” (AILA.7.5).
The EB-1A application package should be submitted in the appropriate lockbox within USCIS. As of this writing, the Dallas lockbox has been designated as appropriate for EB-1A visa applications. The specific filing locations for the EB-1A and other EB-1 applications change often, and the applicant should review the USCIS website at www.uscis.gov for most current instructions.
Once the EB-1A visa application is filed, as part of Immigration Petition for Alien Worker (Form I-140), it can be reviewed within six months of filing, or even as quickly as fifteen days, if the applicant elects the expedited premium review process, for a fee. Once approved, and assuming that the priority date for the application is ‘current,’ the applicant can move to the next and final step in the EB-1A application process -- requesting the Adjustment of Status (AOS) or Immigration Visa Processing (IVP), which subject to the backlog of the USCIS caseload may take approximately another six months to complete.
Form I-485 is used in the EB-1A immigration visa process to request an AOS or an IVP. Although either route is open to all applicants whose immigration visa petition has been approved; typically, foreign nationals residing abroad pursue the IVP through a U.S. embassy or consulate in the country where they reside, while those who are already in the United States on a nonimmigrant visa status (e.g. L-1 or E-2), follow the AOS process through USCIS.
Since individual circumstances differ for each applicant and each process has its pros and cons, foreign nationals should research both options to determine which would provide the best outcome for them.
Once the EB-1A I-140 petition is approved, the EB-1A application spouse and unmarried children who have not yet reached the age of maturity (21) have an option to apply for E-14, ‘spouse of a priority worker’ visa and E-15, child of a priority worker visas respectively. These visa statuses provide them with an unrestricted right to work in the United States, right to travel in and out of the country without restriction. The status also makes them eligible for permanent residence visa adjustment of status with the passage of time.
While other EB-1 visa applications have a relatively high approval rate, EB-1A petitions are subject to a much greater scrutiny and the denials are not unusual. Last available statistics provided by the USCIS suggest that approximately 40% of EB-1A petitions filed do not survive the USCIS review process and are either rejected or denied.
Qualifications. The main reason for EB-1A visa petition denial is the applicant’s lack of ‘extraordinary ability’ qualifications, or the inadequacy of the evidentiary support for such qualifications in the application. As explained elsewhere, the “extraordinary ability” standard presents a very high bar for even the most accomplished practitioners to meet. A successful petition has to be supported by a preponderance of evidence and this evidence is reviewed subjectively by USCIS reviewers who are not experts in the fields where applicants purport to excel. Therefore, even those who may objectively be the top experts in their field may fail to adequately support their case by not providing sufficient supporting information or not providing it in a way that offer reviewers adequate support to approve the application. Unless the applicant holds the once-in-a-lifetime award of exceptional merit (e.g. Nobel Prize or a gold medal from the recent Olympic games), the application may fail because it did not offer support for at least three of the ten ambiguous, subject to interpretation, qualification criteria or has done so without the rigor of exhaustive advocacy for each item in how to meets or exceeds the requirement.
Application Mistakes. Another uncommon reason for EB-1A visa petitions applications to fail is technical or other mistakes in how the petition application forms are filled out or the application package is filed. Even a comprehensive evidence package, supporting the foreign national’s qualifications would not lead to the petition’s approval, if portions of the application are left unfinished, the application fee is not properly calculated and paid, or the EB-1A visa petition package is submitted to the wrong USCIA destination.
Because the EB-1A visa petition application does not require an employer-sponsor and, at least in theory, the applicant can self-apply, such technical mistakes are not unusual. Even if the applicant engages an attorney to support the application process, the EB-1A
“extraordinary ability” applications are rare and, unless the attorney is experienced in the process, mistakes can be made.
Applicant’s Character or Visa Status. As part of its EB-1A petition review process, USCIS conducts a thorough background check for the visa applicant. A criminal record (even minor infractions) in the United States or in the country of origin would lead to the denial of the EB-1A petition.
An application also may be denial, because the foreign national violated the visa status. Violations of visa status are taken very seriously by the USCIS. Typical violations include the foreign national overstaying the temporary employment visa or remaining in the United States after a tourist visa expired. Such “out of status” violations may have serious consequences for the applicant, as they may not only result in a bar on the individual’s ability to enter the United States, but may also impact the foreign national’s ability to obtain other U.S. visas for a foreseeable future.
When considering next steps if the EB-1A application was not successful, it is important to distinguish between the petition being “rejected” or being “denied.” The meaning and consequence of these two outcomes are different in the immigration petition application process. An EB-1A petition may be rejected because of errors in how the application forms were filled-out or because of a fixable technical error. The application is denied, however, if the reviewer determines that the applicant does not meet the evidentiary burden to support his/her claim of “extraordinary ability” or because his/her character or prior visa status make the applicant not eligible for the permanent resident visa under EB-1A status.
A rejected application means that it most likely was never reviewed, because of the flaws in the submission. Therefore, the application may be corrected and re-filed. An EB-1A visa petition application that has been denied is unlikely to be approved on refiling and, if the applicant wishes to resubmit the application by providing stronger evidential support for the “extraordinary ability” claim or to appeal the USCIS determination of the application on its merits, the assistance of an immigration attorney with experience in EB-1A petitions and experience in the EB-1A denial appellate process is recommended.
If the EB-1A visa petition application was denied due to insufficient evidence of the applicant’s “extraordinary ability,” the applicant may seek the reconsideration of the case by providing additional information in support of the application or by restating and strengthening the previously submitted supporting information with greater context for USCIS reviewer’s consideration. The motion for reconsideration must be supported by new or additional evidence and a compelling argument must be made, as to why such evidence was not originally presented.
The EB-1A applicant may also seek to re-open the case by claiming that the reviewer denied the application in error or may formally appealing the USCIS decision to the Administrative Appeals Office (AAO). The AAO appeal or a request for the USCIS to reopen the case based on an error may take a long time to work through the system and are unlikely to succeed, except in rare cases of blatant disregard for EB-1A review procedures or a clear error on the part of the USCIS reviewer.
Finally, if the EB-1A visa application approach is not viable due to lack of qualifications, the petitioner should consider alternative routes to the permanent resident status. Such alternatives may include EB-2 National Interest Waiver for those whose work has the potential of having material positive impact for the United States; a possible EB-1B alternative application for scientists who are also researchers or professors in academia; or an EB-2 or an EB-3 lower preference visa alternative. In practice, if the EB-1A visa petition for a scientist is denied, the same information is unlikely to support the EB-1B application, unless the sponsoring organization can put a highly compelling case together in support of the applicant. The EB-2 and EB-3 visa petitions for accomplished individuals will take much longer to process through the system, but may succeed, if the burden of the costly and time consuming Labor Certification process can be met and the sponsoring employer provides strong support for the application.