How to Avoid the Dreaded Request for Evidence: I-140's
Strange as it seems, many people who qualify for temporary O-1 visas as
persons of extraordinary ability do not automatically qualify for the
permanent EB1-1 category even though the standards are the same. It is
therefore important to prepare an I-140 petition for a person of
extraordinary ability according to the statutory and regulatory
guidelines in order to avoid a Request for Evidence:
- Ensure that all forms are completely filled out.
- Clearly document in a letter from the Petitioner, or from the alien if it is a self petition, how the individual is qualified
for this eminent category.
- Ensure that the alien meets at least three of the required
criteria as listed below. Although meeting three of the
following ten criteria won't guarantee that the alien will qualify
as an individual of extraordinary ability in the arts, sciences,
education, business or athletics, if he can not satisfy at least
three of these items, it may be wise to consider another category.
- Documentation of the alien's receipt of lesser
nationally or internationally recognized prizes or
awards for excellence in the field of endeavor;
- Documentation of the alien's membership in associations
in the field for which the classification is sought,
which require outstanding achievements of their
members, as judged by recognized national or
international experts in their disciplines;
- Published material about the alien in professional or
major trade publications/journals or other major media,
relating to the alien's work in the field for which the
classification is sought. Such evidence shall include
the title, date, and author of the material, and any
necessary translation;
- Evidence of the alien's participation, either
individually or on a panel, as a judge of the work of
others in the same or allied field of specification for
which classification is sought;
- Evidence of the alien's original scientific, scholarly,
artistic, athletic, or business-related contributions
of major significance in the field;
- Evidence of the alien's authorship of scholarly
articles in the field, in professional or major trade
publications or other major media;
- Evidence of the display of the alien's work at artistic
exhibitions or showcases;
- Evidence that the alien has performed in a leading or
critical role for organizations or establishments that
have a distinguished reputation;
- Evidence that the alien has commanded a high salary or
other significantly high remuneration for services, in
relation to others in the field; or
- Evidence of commercial successes in the performing
arts, as shown by box office receipts or record,
cassette, compact disc, or video sales.
- Clearly document through both primary and secondary evidence that
the alien qualifies for each category. Three examples of this
are:
- If the alien is internationally published, provide copies
of the published papers and circulation information proving
that the journal is internationally published;
- If the alien has received an award, show proof of the
receipt of the award and then show the criteria for the
award and why it is so important in that person's field;
- If the alien is highly paid, show that he is paid more than
the weighted average by showing copies of salary surveys
for that particular position.
- If this is an employer-sponsored petition, document the
employer's ability to pay through
- Copies of Signed Corporate Federal Tax Returns;
- Copies of Audited Financial Statements; or
- If the company has over 100 employees provide a signed
statement from the Chief Financial Offer (not the Human
Resources Department) documenting the Petitioner's ability
to pay.
- If this is a self petition, document the following to demonstrate
how the alien intends to support himself through:
a. Offer of Employment or Contract;
b. Proof of Current Assets
- Remember that the BCIS (the agency formally known as the INS) will
not approve an EB1-1 petition simply because the alien meets three of
the ten criteria listed in number three above. An individual of
extraordinary ability is one who belongs to that "small percentage" who
has "risen to the very top of the field of endeavor".
About The Author
Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017
http://www.shusterman.com/
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
Copyright © 1999-2002 American Immigration LLC, ILW.COM
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