EB-1 To Become Current in October 2018 Again for China and India – Is the Extraordinary Ability Visa the Best Option for Chinese Nationals?

Feb 20, 2020 | Investor Visas

By: Joseph Barnett

Mr. Charlie Oppenheim, Chief of the Visa Control and Reporting Division within the U.S. Department of State (“DOS”), recently noted that the Final Action Date (“FAD”) for China employment-based first-preference (“EB-1”) will become current again at the beginning of Fiscal Year 2019, on October 1, 2018.  This is encouraging news, as this visa category has been subject to an FAD since April 2018 and those with approved I-140 petitions have not been able to move forward with immigrant visa processing.  Once current, visas become immediately available to those with approved I-140 petitions.

U.S. immigration law offers an avenue to a green card for foreign nationals with extraordinary ability in science, arts, education, business, or athletics through sustained national or international acclaim who are coming to the U.S. to continue to work in their field of endeavor through EB-1A visa classification.  The biggest advantages of EB-1A classification are that (1) no job offer or permanent job position is required; (2) no labor certification is required; (3) self-petitions are allowed; and (4) premium processing is available for USCIS decisions within 15 days.

With the China EB-5 visa backlog reaching unreasonable lengths, the EB-1A visa category has become a popular immigrant visa option for Chinese nationals.  Proper preparation and submission of a detailed support letter is essential to ensure that an EB-1A petition is approved.  Here are five key points to achieve success:

  1. Smell Test. Before analyzing evidence to see how many EB-1A criteria can be met, it’s important to take a step back and use common sense:  Is the applicant truly at the top of his/her field of endeavor?  What makes the applicant stick out among others in his/her field?  Can the applicant clearly and easily articulate what makes him/her the best in the field?  That is, does the case pass the smell test?  If the assessment is weak, or if claims of outstanding achievements are unreasonable or not credible, there is a good likelihood that the USCIS officer will think the same way.
  2. Complete Documentation is Critical. Establishing extraordinary ability in one’s field requires substantial documentation that meets the complete parameters for each type of evidence listed at 8 C.F.R. § 204.5(h)(3).  USCIS officers will consider the quality and caliber of evidence submitted, as opposed to quantity.  For example, it is not sufficient to merely submit a copy of a nationally-recognized award with the applicant’s name; instead, evidence of the criteria used to grant the award and the significance/reputation of the award and the organization granting it are necessary.  Media about the award should also be submitted to demonstrate the significance of the award.  Expect USCIS to issue a Request for Evidence if not all evidence desired is given.
  3. Entry Will Substantially Benefit Prospectively the United States. The statutory language of the Immigration and Nationality Act require an EB-1A applicant to seek to enter the U.S. to continue work in the area of his/her extraordinary ability and substantially benefit prospectively the U.S. The EB-1A applicant must continue to work in the field of endeavor and present evidence to demonstrate how his/her work will be advantageous or of use to the interests of the U.S.    USCIS is challenging the mere submission of a “declaration of intent,” suggesting that prearranged commitments for working in the field are necessary.  Retaining experienced immigration attorneys to assist in developing future work plans to meet this criterion is essential.
  4. Final Merits Analysis is Subjective. USCIS’ adjudications of EB-1A applications include a “final merits” test to determine whether the evidence is sufficient to demonstrate that the applicant is at the very top of his/her field of endeavor and meets the required high level of expertise for the extraordinary ability immigrant classification.  Unfortunately, this has become a rather subjective test and has brought inconsistent adjudications by USCIS officers.  Hire experienced immigration attorneys who can offer you the best option (motion to reconsider/reopen, appeal, or refile) if the Form I-140 has been denied.
  5. Communist Party Membership. As we previously blogged, communist party membership issues are becoming more common in visa cases. For EB-1A applicants who have previously been employed in senior positions in certain industries (such as media), the U.S. consulate may ask how the applicant was able to obtain such a position without being a member of the Communist Party.  Without proper legal guidance, an EB-1A applicant with an approved Form I-140 may be prohibited from obtaining an immigrant visa due to this inadmissibility.

While we are pleased that the EB- category will become current again for China in October 2018, this visa category is only applicable for a small group of individuals who are truly at the very top of his/her field of endeavor.  Prospective immigrants should also consider the National Interest Waiver, EB-2 and EB-3 sponsorships, as well as the EB-5 immigrant investor visa before deciding to move forward with an EB-1 petition.

A Wolfsdorf Rosenthal LLP attorney can guide you through the EB-1 process and provide a strategy to leverage your professional achievements in a U.S. green card application.  If you have a question about filing an EB-1 petition or want to schedule a professional consultation, please contact a Wolfsdorf Rosenthal LLP attorney to discuss your case.

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