The EB-1A, or extraordinary ability green card, is historically one of the best pathways to lawful permanent residence in the United States. However, certain criteria, as detailed in the article, must be met in order to qualify the applicant for the visa. The two step process requires significant commitment, but yields many benefits if successful.
As it becomes more difficult to get all types of visas and immigration benefits, U.S. employers and foreign nationals are examining all of their legal options. Historically, one of the best pathways to lawful permanent residence in the United States has been the EB-1A extraordinary ability immigrant category, which requires that the applicant demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. This category has many advantages, including obtaining a green card without a sponsoring employer or having to wait years for a visa to become available, even for nationalities with backlogs (such as Chinese and Indians). As it becomes harder to obtain other common visas, such as the H-1B, the extraordinary ability category has become more attractive and more difficult to obtain and may become even more so after implementation of Trump administration “extreme vetting” policies designed to further tighten immigration requirements.
So what does “extraordinary ability” mean? In immigration law extraordinary ability applies to an individual who is among the “small percentage” who have risen to the very top of their field, have sustained national or international acclaim, and whose work will prospectively benefit the United States. Such achievement can be most easily demonstrated by winning a major international award, such as a Nobel Prize, Olympic medal, or Pulitzer, but that is not how most applicants qualify. For the vast majority not lucky enough to have won a prize of such magnitude, the applicant must demonstrate they meet at least three of ten criteria, which include the following:
1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
2. Membership in associations that require outstanding achievement as a condition of membership in the field for which the classification is sought;
3. Published material about the foreign person or his or her work in professional trade journals, or major media publications;
4. The foreign person's participation, on a panel or individually, as a judge of the work of others in the same or a related field;
5. Evidence of original contributions, usually through publication, of major significance in the fields of science, scholarship, the arts, athletics, or business;
6. Authorship of scholarly articles in the field, in professional journals, or other major media (national newspapers, magazines, etc.);
7. Display of the foreign national's work at significant exhibitions;
8. Performance in a significant role for organizations or establishments that have a distinguished reputation;
9. Receipt of a higher salary or remuneration than is usual in the field;
10. Commercial success in the performing arts as shown by box office receipts or sales records, album, or video sales, for example.
How these criteria can be met will vary depending on the field the applicant is in. For example, a scientist who is widely published can often meet criteria five (original contributions in the field of science) and six (authorship of scholarly articles). A strong argument must be made that the publications are original and influential, usually by showing the impact factor and ranking of the journals and the number of citations to the publications. Artists should usually be able to meet criteria seven (display of work at significant exhibitions) or ten (commercial success in the performing arts). A serious and extensive review of the applicant’s work should be conducted with a lawyer experienced in these types of applications to determine what kind of documentation can be provided to show that the criteria are met, as the immigration service is requiring more documentation than ever to meet each one. If the field is highly unusual, and the criteria above do not apply, a creative lawyer can argue comparable evidence that may be appropriate to meet the criteria.
It is very important to note that even if a strong argument can be made that three criteria are met, this is not the end of the analysis. In the decision Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), the Court of Appeals of the 9th Circuit held that eligibility must be shown through a two step process: first the required criteria must be met, and then an analysis of the totality of the evidence must demonstrate that the applicant has risen to the top of their field and sustained the necessary acclaim. The second step is called the final merits analysis and means that meeting three criteria should be considered an absolute minimum. Arguments should be made to meet as many criteria as possible, at least four or five, and voluminous, high quality documentation must be provided to support each one. Lastly, applicants must be prepared to explain how they will continue to work in their field and how their abilities will benefit the United States. A persuasive and well-documented story should be told that not only explains the applicant’s extraordinary skills clearly and with specificity, but also argues effectively how their talents will make lives better for Americans and advance American interests.
The extraordinary ability visa is a marvelous opportunity for foreign nationals and employers to obtain permanent residence for themselves or their employees, but it requires a significant commitment to working closely with an immigration lawyer with experience and expertise in order to make a convincing case. The lawyer can advise whether the documentation and achievements of a prospective applicant may meet the criteria, or if the applicant may want to work on advancing and documenting their career further before applying. He or she may also suggest other options, such as the O-1 temporary extraordinary ability visa or the H-1B, that may also meet the needs of individuals and businesses in an increasingly challenging immigration environment.
