1. Overview
2. Two Step Analysis
3. First Step: In-Depth Analysis and Examples of Each Category
4. The Ten EB-1A Regulatory Criteria
- National or International Awards
- Professional Memberships
- Media Reports
- Judge of Others Work
- Original Contributions of Major Significance
- Scholarly Publications
- Artistic Exhibitions or Showcases
- Leading or Critical Role at Distinguished Organization
- Significantly High Salary
- Commercial Successes in Performing Arts
- Comparable Evidence
5. Second Step: Final Merits Determination
6. Forms and Filing Fees
7. Evidence
8. Request a Free EB-1A Evaluation from Attorney Diab
9. Additional Sources
If you are interested in immigrating to the U.S and are among the top of your field, in your country or globally, EB-1A might be the ideal option. Please read the following sections to learn the basics of EB-1A and its requirements and legal analysis. It will help you assess whether you may qualify. Still, feel free to reach out to me for a free evaluation of your profile.
Overview
The EB-1A, or Employment-Based First Preference Category A, is adjudicated by the U.S. Citizenship and Immigration Services agency (USCIS). It is a U.S. immigrant visa category designed for individuals with extraordinary ability in their respective fields. It is part of the employment-based immigration preferences and is specifically tailored for those who have demonstrated extraordinary knowledge and expertise and sustained achievements in the fields of the sciences, arts, education, business, or athletics. To qualify, the petitioners must provide evidence of sustained national or international acclaim, showcasing a level of achievement significantly beyond that of their peers (very top of the field).
Unlike other employment-based categories (such as EB1B, EB1C, EB2, and EB3), the EB-1A (as well as NIW) does not require a specific job offer or labor certification, making it an attractive option. However, EB-1A requires that the petitioner continues to work in the same area of extraordinary ability upon obtaining permanent residency in the U.S. Furthermore, depending on the nationality of the petitioner (or their spouse), the waiting time for EB-1A green card availability is significantly shorter, or even nonexistent, compared to other employment-based categories.
Two Step Analysis
USCIS strictly applies a 2-step analysis for EB-1A petitions to determine if the petitioner qualifies as an individual of extraordinary ability in their field with international or national sustained recognition in the field. USCIS officers frequently conflate the two steps, which results in a request for evidence. Therefore, to avoid this issue, the petition must clearly distinguish between the two steps to guide the officer through the proper analytical structure for EB-1A.
First Step: Three out of Ten Regulatory Criteria
The first step requires petitioners to meet three out of the ten criteria established by the EB-1A regulations (“regulatory criteria”). In this step, the USCIS officer must focus on the legal description of each criterion without requiring that it shows national or international recognition or that the petitioner is at the top of the field. (Yes, this is not easy to understand nor explain, which is why you need an experienced immigration attorney). Sometimes, USCIS officers request more evidence, or even deny the EB-1A petition, because they misunderstand this legal distinction.
The Ten EB-1A Regulatory Criteria
If you look closely at each word within the legal description of each criterion, as described below, you will realize how only very specific types of evidence may qualify to meet at least three criteria. USCIS has attempted to offer objective definitions of the elements of all criteria, but there remains a lot of uncertainty because each EB-1A case is unique, and one rule cannot cover all. So, this overview will be general in nature, and Attorney Diab will publish more articles providing specific examples.
National or International Awards
Legal Description: “Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.”
The award must meet several elements: 1) the individual must be the person who received the award, 2) the award must be international or national (i.e. competitors are not limited to a small region/province/state), 3) the award must be for excellence, 4) the award must be in the same field. USCIS also looks for other factors, such as criteria, number of winners, the competition sponsors/organizers, among others.
Professional Memberships
Legal Description: “Membership in associations in the field for which classification is sought that require outstanding achievement of their members, as judged by recognized national or international experts in their disciplines or fields.”
Professional memberships is a very difficult criterion because only few types of memberships may qualify, and USCIS requests a lot of evidence to support certain elements. Generally, to meet this criterion, you must meet the following: 1) have a membership, 2) in a professional association, 3) that specializes in the same field as the EB-1A individual, 4) and where the membership is only granted upon the review of a) recognized, b) national or international, c) experts in the field.
Media Reports
Legal Description: “Published material about the person in professional or major trade publications or other major media relating to the person’s work in the field for which classification is sought. Such evidence must include the title, date, and author of the material, and any necessary translation.”
Media reports is also a difficult criterion and USCIS is not very consistent in finding whether a report qualifies for this criterion or not. A report may qualify if 1) it has title, date, and author, 2) it discusses the EB-1A individual’s work in the field, and 3) it was published in a major, or major trade, or professional media publication. Other factors USCIS looks for are the presence of an editorial committee and whether the publication was paid. The reports can be online or print.
Judge of Others Work
Legal Description: “The person’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought.”
This is one of the few EB-1A criteria that has few and straightforward elements. For example, it requires that the EB-1A individual 1) participated either along or with other experts, 2) in judging or reviewing the work of other people, 3) who work in the same or related field. However, USCIS does not accept any instance of review or judging of the work of others to qualify for this criterion. Sometimes, the event or object being reviewed may be too simple to be used for EB-1A purposes (e.g., judging high school students’ competitions).
Original Contributions of Major Significance
Legal Description: “The person’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.”
Almost all EB-1A petitions I have seen submitted evidence for this criterion. However, it is much more difficult than the legal description. It has three elements: 1) original contribution, 2) in the field of the EB-1A individual, and 3) that had major significance in the field. Often, USCIS rejects this criterion because of the last element. The originality of a contribution can be proved with a patent, published book, support letters, etc., but how much influence such contribution had to the field is very hard to measure and prove.
Scholarly Publications
Legal Description: “The person’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.”
Another deceivably simple criterion, showing apparently straightforward elements: 1) authored, 2) an article, 3) that is scholarly, 4) with a topic within the field, 5) and has been published, 6) in major, major trade, or professional media. Elements 3 and 6 are the common reasons for USCIS’s rejection of this criterion. Not everything you write qualifies as scholarly for people in your field, and not every publication meets the definitions of major, major trade, or professional.
Artistic Exhibitions or Showcases
Legal Description: “Display of the person’s work in the field at artistic exhibitions or showcases.”
Only certain types of EB-1A applicants have qualifying evidence for this criterion that meets all its elements, which are 1) the display or exhibition, 2) of the individual’s product, 3) that is artistic in nature, and 4) within the field. For instance, fashion designers, sculptors, painters, and even architects or urban designers, usually have work that meets this criteria.
Leading or Critical Role at Distinguished Organization
Legal Description: “The person has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.”
This criterion is typically used by executives, managers, and other senior staff, but even lower level staff with significant achievements at their employer may meet the criterion. The elements are: 1) you performed, 2) in a leading or critical role, 3) in distinguished organization, 4) in the field.
High Salary
Legal Description: “The person has commanded a high salary, or other significantly high remuneration for services, in relation to others in the field.”
An impossible criterion to meet, unless you are making a lot of money and can prove it. Look at its elements: 1) you did or will command a high salary or other type of pay, 2) that is high, 3) relative to your peers in the field. What does “high” mean? USCIS has never provided a ratio of how much you should be making compared to your colleagues who work in the same position in the same field of work.
Commercial Successes in Performing Arts
Legal Description: “Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.”
Similar to display or artistic work, this criterion only applies to certain fields, such as directors, screenwriters, musicians, dancers, producers, etc. The criterion focuses on the commercial aspect of the work and offers specific types of evidence to prove it. However, you must also show whether the commercial numbers would qualify as successful, which involves comparing the outcomes with other events in the field.
Comparable Evidence
Legal Description: “Comparable evidence to establish the person’s eligibility if the standards do not readily apply to the person’s occupation.”
If you talk to an immigration attorney, and they tell you this is an easy criterion, run away. Over the decades, only a handful of evidence met its requirements. This criterion is basically used to allow individuals who have evidence that does not fit in any of the above criteria, but is very similar to one of them. However, the legal analysis has a different structure and strict requirements to even consider the evidence.
Second Step: Final Merits Determination
In this step of analysis, only upon meeting 3 of the 10 criteria, the USCIS officer performs a qualitative review of all the evidence you submitted, including evidence submitted for rejected criteria, and even evidence that does not belong to any of them. The officer assesses, whether the totality of the evidence shows that 1) you are among the top of your field, 2) you are nationally or internationally recognized for your achievements in the field, and 3) whether such recognition is sustained (i.e., to the time of submitting the EB-1A).
Forms and Filing Fees
EB-1A, like most other employment-based categories, requires Form I-140, Immigrant Petition for Alien Worker. As of April 1, 2024, the fee for Form I-140 is $715.
As for expediting the USCIS response to the EB-1A petition, the petitioner has the option to use Form I-907, Request for Premium Processing. As of February 26, 2024, the fee for Form I-907 for EB-1A is $2,805.
Evidence
EB-1A are evidence-intensive immigration petitions. Once you review the basic descriptions of the criteria mentioned above, including the several elements within each criterion, you should have realized that you will need a lot of time and organization to submit all the required documentation to your attorney.
One of the most common pieces of evidence are support letters from experts in the field, which are sometimes not required, depending on the level of your achievements. However, submitting 3-5 letters along with the evidence may help fill and explain many gaps in the supporting documents.
Request a Free EB-1A Evaluation from Attorney Diab
Please feel free to email me at gdiab@huimmigration.com for a free evaluation. I will respond to you with an evaluation (or many questions) within 48 hours. Please send me the following along with the request:
- CV/Resume
- Google Scholar link (if applicable)
- A paragraph describing your work plans in the U.S. upon receiving a green card.
Additional Sources