By: Bernard Wolfsdorf, Richard Yemm and Joseph Barnett
The EB-1A (also referred to as EB-1-1) Extraordinary Ability Visa is one of the most direct and fastest avenues to a U.S. green card. This highest-level employment-based visa category is offered to foreign nationals with a high level of ability across diverse fields, including the sciences, arts, education, business, or athletics. An EB-1A applicant must submit evidence with a Form I-140 to show that he/she has received a one-time achievement (a major internationally recognized award, like the Nobel Prize), or qualifies under at least 3 of 10 criteria listed at 8 C.F.R. § 204.5(h)(3). Most EB-1A applicants need to qualify under the latter because of the limited amount of major, internationally recognized awards or prizes granted. After the Form I-140 is approved, EB-1A applicants can obtain a green card through consular processing abroad, or, if eligible, by filing a Form I-485 adjustment of status application.
The truly incredible advantages of EB-1A classification are that (1) self-sponsorship is allowed; (2) no job offer or permanent job position is required; (3) no labor certification is required; (4) premium processing is available for USCIS decisions within 15 days; and (5) as of now, all visas are current for immediate processing after I-140 approval i.e. no visa backlogs. In other words, all you need to qualify for this streamlined immigrant visa category is demonstrate an impressive list of professional accomplishments, and supporting evidence to prove that you have risen to the top of your field. (Easier said than done!)
For those considering the coveted EB-1A visa, we recommend the following tips to ensure your immigrant visa application is successful.
- Narrow the Field of Endeavor. One of the most important aspects of an EB-1A application is properly defining the “field of endeavor.” Only when the “field of endeavor” has been strategically defined can USCIS determine whether the applicant is one of that small percentage who has risen to the very top of the field. For example, it is easier to show you are a top opera singer than trying to demonstrate you are a top musician. Retaining experienced immigration attorneys to assist in defining the “field of endeavor” will increase your chances of I-140 approval.
- Complete Documentation is Critical. Establishing extraordinary ability in one’s field requires substantial documentation that meets the 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. Expect USCIS to issue a Request for Evidence if not all the desired evidence is given. Experienced immigration attorneys can communicate what types of supporting documents you will need to gather in order to demonstrate your “extraordinary ability” in the field. They can also provide recommendations when supporting documentation is not readily available.
- Final Merits Analysis is Subjective. USCIS adjudications of EB-1A applications include a “final merits” determination of whether the evidence submitted in totality is sufficient to demonstrate that the applicant meets the required high level of expertise. Unfortunately, this has become a rather subjective test and has brought inconsistent adjudications by USCIS officers. Each EB-1A application will need a robust final merits argument written by a skilled immigration attorney. Experienced immigration attorneys are well versed in the subjective reasoning underpinning this criterion. If the I-140 has been denied, an experienced immigration attorney can also offer strategic options to move forward with an EB-1A application, including refiling the petition with USCIS or appealing with the Administration Appeals Office.
- Applicant Needs to Establish that Entry Will Substantially Prospectively Benefit the United States. The Immigration and Nationality Act requires an EB-1A applicant to seek to enter the U.S. to continue work in the area of extraordinary ability and to demonstrate how his/her work will be advantageous or of use to the interests of the U.S. on a national level. Experienced immigration attorneys can assist in evidencing prospective benefit to ensure that you meet this criterion.
A successful EB-1A application starts with an impressive resume and a talented immigration attorney. While immigration law itself is highly technical, the EB-1A immigrant application is in many ways more open-ended and flexible than other immigrant visa categories.
A Wolfsdorf Rosenthal LLP attorney can painlessly guide you through the EB-1A 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-1A petition or want to schedule a professional consultation, please contact a Wolfsdorf Rosenthal LLP attorney to discuss your case.