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First Preference Employment Based Immigration - Aliens Of Extraordinary Ability

by Gregory Siskind

The first employment based immigration preference category covers “priority workers.” These are workers whose skills and talents are important to the US – the “best and brightest.” The annual cap on EB-1 visas is 40,000, plus any visas left over from the fourth and fifth employment based preference categories (special immigrants and immigrant investors). This is more visas than are ordinarily used in the category, so there are no backlogs in visa issuance in this category.

Who is included in the EB-1 Category?

The EB-1 category covers three groups:

One of the most attractive aspects of the EB-1 category is that the labor certification requirement does not apply. This makes the time spent processing an EB-1 application much shorter than for categories that do require a labor certification.

Who is considered an alien of extraordinary ability?

This subcategory covers aliens possessing extraordinary ability in the sciences, arts, education, business or athletics. The extraordinary ability subcategory does not require a specific job offer, so long as the alien states that they will continue to work in the field of their extraordinary ability in the US. This means that the alien may file a petition on their own behalf, rather than having an employer file for them.

How is extraordinary ability defined?

Extraordinary ability is a relatively new concept in immigration law, being introduced only in 1990. USCIS regulations define extraordinary ability as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.”

There are two ways to demonstrate extraordinary ability. First, the alien can show that they have received a major, internationally recognized award such as a Nobel Prize or an Academy Award. The second, and more common method is for the alien to show three of the following ten types of evidence:

· Receipt of lesser national or international prizes or awards for excellence in their field of endeavor

· Membership in associations in the field of endeavor that require outstanding achievements of their members

· Published material about the alien and his work in professional journals, trade publications, or the major media

· Participation, either in a group or alone, as a judge of others in the same or a similar field

· Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor

· Authorship of scholarly articles in the field, published in professional journals or the major media

· Display of the alien’s work at artistic exhibitions or showcases in more than one country

· Performance in a lead, starring, or critical role for organizations with a distinguished reputation

· Commercial success in the performing arts, as shown by box office receipts and sales

· Receipt of lesser national or international prizes or awards for excellence in their field of endeavor

Realizing that these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, the USCIS has also included a catch-all category allowing submission of other comparable evidence.

What should I know about the types of evidence that are appropriate to send?

While USCIS rules set up a three out of ten requirement with regard to the above categories of evidence, subsequent policy statements have made the rule less clear. For example, when publication of scholarly articles is standard in the field of endeavor, the USCIS often will not accept it as one of the three types of evidence and will demand additional evidence. However, in this case, instead of presenting additional evidence the alien can counter by showing that the publications were in the most prestigious journals in the field, have been peer reviewed in other publications, or have been cited extensively by others in the field.

While not an official category of evidence, another way to demonstrate extraordinary ability is through comparison with an alien already granted that status. This is possible because USCIS regulations make comparison with others in the field one of the standards for judging extraordinary ability. Therefore, while it may be difficult to find out how the USCIS has treated someone with similar credentials, it is highly relevant evidence.

One final word of caution should be made of the type of evidence submitted to the USCIS. Many types of evidence, while it may technically fit within USCIS regulations, are not accorded much weight by the agency. For example, publication by a vanity press, a simple citation to the alien’s work without evaluation, or a single listing in an index are not accorded much weight. Other types of evidence are considered highly persuasive, such as publication in peer-reviewed journals. Finally, some of the most persuasive types of evidence are letters from peers in the alien’s field attesting to the alien’s important contributions and ability.

About The Author

Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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