Immigrant Classifications - Employment-Based
Extraordinary Ability, EB-1
Section 203(b)(1)(A)(i) of the Immigration and Nationality Act ("INA") permits the issuance of immigrant visas to aliens of extraordinary ability in the sciences, arts, education, business or athletics which is demonstrated by "sustained national or international acclaim" and whose achievements have been recognized in the field. Foreign nationals or their U.S. employers may seek classification for the worker as an "alien of extraordinary ability" through filing an I-140 petition. A labor certification is not required. In addition, an alien may self-petition for this classification so long as he provides evidence that he is coming to the U.S. to work in the field in which he has achieved acclaim. "Extraordinary ability" I-140s fall under the employment-based first preference category ("EB-1") in the visa bulletin
If the alien self-petitions, then unlike most immigrant visa classifications, there is no requirement to show the ability to pay the alien’s wage. However, if an employer petitions for the alien, the employer must demonstrate its ability to pay the beneficiary the proffered wage through submission of federal income tax returns, an annual report or audited financial statements.
The petitioner or self-petitioner must also demonstrate that the beneficiary’s achievements have been recognized and place him at the very top of his field of endeavor. This evidence may consist of a one-time achievement that is a major, internationally recognized award, or at least 3 of the following:
- Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Membership in related associations which require outstanding achievements of their members;
- Published material about the beneficiary in professional or major trade publications or other major media, relating to his work in the field;
- Evidence of the beneficiary’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
- Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
- Authorship of scholarly articles in the field, in professional or major trade publications or other major media;
- Evidence of the display of the beneficiary's work in the field at artistic exhibitions or showcases;
- Evidence that the beneficiary has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
- Evidence of high salary or remuneration for services, in relation to others in the field;
- Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales; or
- Comparable evidence, if the above items do not readily apply.
The "Extraordinary Ability" EB1 classification is, by design, very restrictive. Not only must the beneficiary demonstrate a high level of achievement, but he must also show that his acclaim is "sustained". Thus someone who may have achieved a level of extraordinary ability in the past but then failed to maintain a comparable level of acclaim thereafter does not qualify as an alien of extraordinary ability.
Moreover, USCIS significantly narrowed the scope of this classification in a memorandum and through changes to the Adjudicator’s Field Manual, in 2010. The memo was based on a federal court case, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), which introduced a two-part test for evaluating evidence submitted in support of an I-140/Extraordinary Ability petition. The first step in this test is to determine whether the petitioner has submitted the required evidence as outlined above. The second step is a "final merits determination" in which the adjudicating officer must determine whether the evidence submitted is sufficient to demonstrate that the beneficiary (or self-petitioner) meets the required high level of expertise for the classification. This standard has proven very difficult to satisfy in practice.