EB-1 is an employment-based first preference category. It is further subdivided into (1) Aliens of Extraordinary ability, (2) Outstanding professors and Researchers and (3) Multinational Manager or Executive. This article will deal exclusively with Aliens of Extraordinary ability in the sciences, arts, education, or athletics. Though it is an employment-based preference category, actual employment sponsorship is not required. Aliens in this category can self-petition for green card or permanent residence in the United States. This category is reserved for those small group of aliens that can demonstrate extraordinary ability through sustained national or international acclaim and whose achievements have been recognized in their field through extensive documentation.
Eligibility Criteria
Those aliens seeking classification for EB-1 must satisfy, at least, three of these requirements:
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Evidence of receipt of nationally or internationally recognized prizes or awards for excellence in their field of specialty
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Evidence of membership in associations in their field which demand outstanding achievement for their members
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Evidence of published material(s) about the alien in professional or major trade publications or other major media
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Evidence of judging the work of others, either individually or on a panel
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Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field of expertise
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Evidence of authorship of scholarly articles in professional or major trade publications or other major media
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Evidence that work has been displayed at artistic exhibitions or showcases
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Evidence of performance of a leading or critical role in distinguished organizations
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Evidence of high salary or other significantly high remuneration in relation to others in the field
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Evidence of commercial successes in the performing arts
Advantages of EB-1 Category
Though EB-1 comes under the employment based preference category, employment and sponsorship are not required. The alien does not need a United States Based employer for sponsorship. The alien can self-petition for green card and does not have to go through labor certification. The alien’s spouse and children under the age of 21 are also eligible for green card. The alien can also apply for citizenship after three years of obtaining green card through EB-1 instead of the normal waiting period of five years.
ADJUDICATION PROCESS
The United States Citizenship & Immigration Service employ a two part analysis under Kazarian v. USCIS, in adjudicating EB-1 petitions. The first step is to determine, based on the documents the alien submitted, whether he/she satisfied at least three of the ten eligibility criteria listed above. If the adjudicating officer determines that the alien met at least three of the regulatory criteria above, the officer must then consider the totality of the submission to determine whether the alien meets the requisite level of expertise for EB-1; that is,
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Whether the alien has achieved a level of expertise indicating that he/she is “one of that small percentage who have risen to the very top of the field of endeavor”.
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Whether the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.
Standard of Proof
The standard of proof for petitions filed for or by aliens of extraordinary ability is the “preponderance of the evidence”.; that is, if the petitioner submits relevant, probative and credible evidence that leads USCIS to believe that the claim is “more likely than not” or “probably true”, the petitioner has satisfied the standard of proof. “More likely than not” is a greater than 50% chance of an occurrence taking place.
Application Process
To apply for green card based on extraordinary ability, the petitioner has to file Form I-140 with all the required documents. The application must contain the initial evidence that:
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the alien has sustained national or international acclaim; and
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the alien’s achievements have been recognized in the field of expertise
This initial evidence must contain at least three of the criteria listed under eligibility criteria above and upon submission, the USCIS will undertake part one of the two-part evaluations. In part one, the USCIS will:
Documentation of Receipt of Recognition or awards. 8 CFR Section 204.5(h)(3)(i): (1) Determine if the alien was the recipient of prizes or awards, (2) Determine whether the alien has received lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor
Documentation of Membership in Associations. 8 CFR Section 204.5(h)(3)(ii): (1) Determine if the association for which the alien claims membership requires that members have outstanding achievements in the field as judged by recognized experts in the field.
Published materials about the alien. 8 CFR Section 204.5(h)(3)(iii): (1) Determine whether the published materials were related to the alien and the alien’s specific work in the field for which classification is sought, (2) Determine whether the publication qualifies as a professional publication or major trade publication or a major media publication
Evidence of alien’s participation on panels as judge. 8 CFR Section 204.5(h)(3)(v): (1) Determine whether the alien has acted as the judge of the work of others in the same or an allied field of specialization, for example: (a) Peer reviewing for a scholarly journal, as evidenced by a request from the journal to the alien to do the review, accompanied by proof that the review was actually completed and (b) serving as a member of a Ph.D dissertation committee that makes the final judgment as to whether an individual candidate’s body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.
Evidence of aliens’s original work. 8 CFR Section 204.5(h)(3)(v): (1) Determine whether the alien has made original contribution in the field of specialty, (2) Determine whether the alien’s original contributions are of major significance to the field.
Evidence of alien’s authorship. 8 CFR Section 204.5(h)(3)(vi): (1) Determine whether the alien has authored scholarly articles in the field, (2) Determine whether the publication qualifies as professional or major trade publication or a major media publication
Evidence of display of alien’s work in the field. 8 CFR Section 204.5(h)(3)(vii): (1) Determine whether the work that was displayed is alien’s work product, (2) Determine whether the venues (virtual or otherwise) where the alien’s work was or were displayed were artistic exhibitions or showcases.
Evidence that the alien has performed in leading or critical roles. 8 CFR Section 204.5(h)(3)(viii): (1) Determine whether the alien has performed in leading or critical roles for organizations or establishments, (2) Determine whether the organization or establishment has a distinguished reputation.
Evidence that the alien has commanded a high salary. 8 CFR Section 204.5(h)(3)(ix): Determine whether the alien’s salary or remuneration is high relative to the compensation paid to others working in the field. Sources of information as to salary: (a) Bureau of Labor Statistics, (b) The Department of Labor’s career one stop website, (c) The Department of Labor’s Office of Foreign labor Certification
Evidence of Commercial success. 8 CFR Section 204.5(h)(3)(x): (1) Determine whether the alien has enjoyed commercial successes in the performing arts
Standards. 8 CFR Section 204.5(h)(4): Determine if the evidence submitted is comparable to the evidence required in 8 CFR 204.5(h)(3)
Part Two Analysis
In part two of the analysis, the USCIS will evaluate the entirety of the evidence to determine whether the petitioner has proved, by a preponderance of the evidence, that he or she has demonstrated sustained national or international acclaim, that his or her achievements have been recognized in the field of expertise and thereby showing that he or she is one of the small percentage who has risen to the very top of their field of endeavor. If the USCIS determines otherwise, it must articulate the specific reasons for their conclusion or denial.