When seeking classification as a person of extraordinary ability, a petitioner files an Immigrant Petition for Alien Workers on behalf of a noncitizen (who may also be the petitioner) with evidence demonstrating that the beneficiary satisfies the eligibility requirements.
There are three requirements for eligibility: (1) the person has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation; (2) The person seeks to enter the United States to continue work in extraordinary ability; (3) The person’s entry into the United States will substantially benefit the United States in the future.
A petition filed on behalf of a person with extraordinary ability does not need to be supported by a job offer. The person must still demonstrate, however, that he or she intends to continue work within the realm his or her extraordinary ability and that his or her work will substantially benefit the United States in the future.
The First Requirement: Sustained National or International Acclaim
Each beneficiary must submit evidence that they have sustained national or international acclaim and that the person’s achievements have been recognized in their field of expertise. When determining if the beneficiary has enjoyed “sustained” national or international acclaim, the officers consider whether the acclaim has the potential to be maintained, which it must. Nonetheless, the term sustained does not imply an age limit on the beneficiary who may be very young and year in their career or an experienced achiever. There is no specific period on what constitutes sustained. The officer will determine whether the individual continues to maintain a comparable level of acclaim in the field of expertise since the person was originally afforded that recognition. This is to prevent an instance where an individual has achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim afterwards.
The Second Requirement: Continuing to Work in the Area of Expertise
The beneficiary must intend to continue to work in the area of his field of expertise. The officer may encounter instances where it is difficult to determine whether the person’s intended employment falls sufficiently within the bounds of his or her area of extraordinary ability. Problematic cases arise and are typically those where the beneficiary sustained national or international acclaimed bason on their abilities as an athlete, but then the beneficiary intends to come to the U.S. to be employed as an athletic coach or manager. Where this becomes problematic is that competitive athletics and coaching rely on different skills and in general are not int eh same area of expertise.
The Third Requirement: Entry to Substantially Benefit the United States
The beneficiary must substantially benefit the United States in the future. Ironically, the statute nor the regulations specifically define the statutory phrase “substantially benefit” so it is interpreted widely. The officer determines whether the beneficiary’s employment meets this requirement using a fact-dependent assessment of the case. There is no standard rule applied to satisfy the “substantially benefit” threshold/. In some cases, USCIS will issue a Request for Evidence (RFE) to receive more information before determining whether the beneficiary met this requirement.
New Guidance in Action
U.S. Citizenship and Immigration Services is issuing policy guidance in their Policy Manual to further clarify the types of evidence used to evaluate and determine eligibility for extraordinary ability EB-1 immigrant visa classifications.
This policy guidance:
- Confirms that we consider a person’s receipt of team awards under the criterion for lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- Clarifies that we consider past memberships under the membership criterion;
- Removes language suggesting published material must demonstrate the value of the person’s work and contributions to satisfy the published material criterion; and
- Explains that while the dictionary defines an “exhibition” as a public showing not limited to art, the relevant regulation expressly modifies that term with “artistic,” such that we will only consider non-artistic exhibitions as part of a properly supported claim of comparable evidence.
Key Impacts for Petitioners
Consideration of Team Awards: USCIS now considers an individual’s participation in team awards to satisfy the criterion for lesser nationally or internationally recognized prizes of awards for excellence. This change is positive for petitioners as USCIS will now consider their contribution to a team that has achieved recognition even in the event where the applicant has not won a personal award.
Inclusion of Past Memberships: Previously, USCIS only considered an applicant’s current memberships in associations that demand outstanding achievements. However, under the new eligibility criteria, USCIS will consider an applicant’s present and past memberships. This will allow for many applicants to benefit from their previous affiliations with prestigious professional associations as a potential way to broaden the scope for recognition of their expertise and accomplishments.
Loosened Published Material Criterion: USCIS got rid of the language requiring published material written about an applicant to explicitly highlight both the value of their work and their contributions to the field. This change will make the process for applicants much less restrictive as applicants will now be able to use published material discussing themselves and their achievements without the stress of ensuring that the publication also including the significance of their work.
Clarification on Exhibitions and Showcases: This clarification expands opportunities for specific applicants in non-artistic fields where pubic exhibitions may still demonstrate extraordinary skill, recognition, or reputation. The new guidance outlines that non-artistic exhibitions or showcases will only be considered as part of the comparable evidence criterion, not as evidence of artistic exhibitions or showcases.
Bringing It All Together
These updates are part of USCIS’s continued push to make things clearer and more transparent when it comes to the evidence needed for EB-1 eligibility. By fine-tuning the EB-1 criteria, USCIS is adding more flexibility and acknowledging the many different ways people can show their extraordinary ability.
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