EB-1A Requirements

Background

Relatively strict criteria govern which aliens qualify for an EB-1A visa. U.S. Citizenship and Immigration Services (USCIS) adjudicating officers evaluate cases on the evidence presented against statutorily defined requirements. Officers reviewing petitions look for aliens whose cases demonstrate sustained national or international acclaim and essentially present themselves, with extensive documentation, as one of a small group of professionals who have risen to the top of their fields.

To satisfy the legal criteria for an EB-1A, applicants must present one of two types of evidence: either a one-time, major international award such as a Nobel Prize or Pulitzer or fulfilling at least three out of 10 qualifications stipulated in C.F.R. § 204.5(h)(3).

We break down the adjudication process into “tiers” and further explore them below.

USCIS Two-Tier Analysis

First Tier – Preponderance of Evidence on an Individual Basis

In the first tier, applicants must satisfy the preliminary requisites of demonstrating an intention to enter the U.S. to continue working in their field of extraordinary ability, and ideally striving to show that such work will serve U.S. national interests. If these foundational requirements are satisfied, and an applicant has won a prestigious international award, then the alien’s EB-1A application will essentially always be approved.

If these foundational requirements are satisfied but an alien lacks such an internationally renowned award, then fulfilling three of the following 10 criteria will suffice for approval.

  1. Receipt of a less-recognized national or international award for excellence in the field of endeavor.

    • Documentation should state the criteria for receiving the award, as well as how many people competed for it. A letter from the award committee stating these facts will suffice.
    • The award must be national or international in scope, e.g., the Guglielmo Marconi Prize Paper Award at the IEEE Annual Conference on Wireless Communications.
    • Note that awards received at the student level will not be given substantial weight.

  2. Membership in associations requiring outstanding achievements of their members, as judged by recognized national or international experts in the relevant field.

    • Regular membership in an association that is relatively easy to join will be of little, if any, help to your petition, since such memberships don’t require outstanding achievements. Consider a regular membership with the American Cancer Society, for example, which requires a nominal fee to become a member, and nothing else. In contrast, to join the National Academy of Sciences as a Foreign Associate requires being one of only 18 individuals chosen per year, each of whom must be nominated by an academy member in recognition of the individual’s distinguished achievements in original research.

  3. Published material in professional or major trade publications, or in other major media, relating to the alien’s work. Evidence of this criterion should include the title, date, and author of the piece, in addition to any necessary translations.

    • Articles referring to an applicant’s research or accomplishments on news websites such as CNN, MSNBC, Yahoo!, etc., or on professional new websites such as ScienceDaily, NewsRX, etc., may alternatively be submitted.
    • Media recounting how an alien judged a high-profile competition in his or her field will count towards satisfying this criterion. Material regarding an alien judging lower-level or local competitions, or competitions unrelated to his or her field, will not carry much weight.

  4. Participation, either individually or on a panel, as a judge of others’ works in the same or a related field.

    • Expert review work for journals with international circulations is generally expected, though reviews of conference papers may be considered.
    • Both the quantity and quality of reviews completed, as well as the overall reputation of the journal(s) in which they appear, will be taken into consideration.
    • Evidence for this criterion should include a review confirmation letter explaining why and by whom the applicant was chosen as a peer reviewer.

  5. Original scientific, scholarly, artistic, athletic, or business-related contributions that have had a demonstrably major significance in the alien’s field.

    • In general, the most effective evidence satisfying this criterion is recommendation letters from independent experts in the relevant field. In these letters, experts should discuss using or otherwise being influenced by the applicant’s contributions.
    • Patents, too, may satisfy this criterion, but note that patents will be considered only if the patent has been approved and only if the alien can demonstrate that the patent has demonstrably impacted the relevant field, i.e. the patent has been widely adopted, or the patent has been licensed and commercialized.

  6. Authorship of scholarly articles in professional or major trade publications, or in other major media, in the field.

    • There is no minimum publication requirement. USCIS judges the publications submitted as evidence on a case-by-case basis, and unsurprisingly, quality is abundantly more important than mere quantity.
    • The number of citations the applicant’s articles have received is also taken into consideration.
    • To be of the maximum evidentiary value, these articles generally must appear in publications with international or national circulation.

  7. Display of work at artistic exhibitions or showcases. (Typically, this criterion is useful for an artist who has publicly displayed his or her work.)

  8. Assuming a leading or critical role in an organization or establishment with a distinguished reputation.

    • Documentary evidence for this criterion generally comes in the form of letters and other materials verifying and describing the leading or critical role. This documentation should also include information about the organization or establishment and its reputation.

  9. Commanding and holding a high salary, or significantly high remuneration for services, relative to others in the field.

    • In most cases, a salary and bonus package at or exceeding $1,000,000 will satisfy this criterion.

  10. Commercial success in the performing arts. (Typically, this criterion is used by immigrant singers, performing artists, musicians, and film actors.)

    • Evidence should include box office receipts or record, cassette, CD, or video sales.

If fewer than three of the above criteria are fulfilled, then the petitioner’s application will likely not be approved.

But if the applicant has demonstrated evidence of at least three of the above 10 criteria, then the applicant’s case will proceed to the second tier of adjudication, when final determinations on petitions are rendered by USCIS.

Second Tier – Final Merits Determination

USCIS has restructured the methodology of its EB-1A evaluation process such that the evidence in its totality is, during the final stage of adjudication, weighed against the legal criteria for extraordinary ability.

After satisfying the first tier, the evidence an alien petitioner submits will be considered holistically, with USCIS weighing the evidence against the high standards needed to qualify as an Alien of Extraordinary Ability. In practice, this means USCIS has more discretionary power to deny or approve EB-1A cases, even if applicants have successfully demonstrated at least three of the 10 types of evidence in the first tier.

In the second tier, the totality of an alien’s submitted evidence must establish that the he or she has:

  1. Sustained national or international acclaim. The alien’s accomplishments have been recognized in the associated field.

    • Note that this acclaim has to be current at the time of filing the EB-1A petition. An alien who has achieved extraordinary ability in the past but thereafter failed to maintain a comparable level of achievement will generally fail to pass second-tier analysis.

  2. A high level of expertise. This indicates that the alien is among a small percentage of people who have risen to the very top of the relevant field.

Many practitioners have found that securing approvals for the EB-1A petitions they file is becoming increasingly difficult as a result of the methodology described above. Failure to successfully represent EB-1A clients has the potential to result in talented scientists, researchers, and other professionals deciding to altogether leave the U.S., thereby impeding U.S. innovation and economic progress.

Despite this anecdotal trend, our firm has maintained a high approval rate on our clients’ EB-1A cases.

If you feel that you meet the EB-1A requirements and would like to file an employment-based petition for permanent residence, you should consider filing a petition under the "Alien of Extraordinary Ability" category. As with any petition for permanent residence, our attorneys can help you determine which type of petition is most suitable for you.

For more information on the EB-1A visa, refer to the following links:

Our experienced immigration attorneys are here to assist you in your EB-1 application. For more detailed information on the EB-1 category, including minimum requirements and USCIS policies, refer to the following links:

Updated 04/05/2017