Extraordinary Ability (EB1) Petitions

˜Remember that an alien may be stronger in one particular evidentiary area than in others; however, the overall impression should be that he or she is extraordinary.  Remember also that you cannot predetermine the kind of evidence you think the alien should be able to submit, and deny the petition if that particular type of evidence (whether one of the types listed in 8 CFR 204.5(h)(3) or “comparable evidence” under 8 CFR 204.5(h)(4)) is not there. For example, you may think that if an alien is extraordinary, there should be published articles about the alien and his or her work.  However, you cannot deny the petition because no published articles were submitted, if evidence meeting three qualifying criteria has been submitted that demonstrates he or she is in fact extraordinary.  Approval or denial of a petition must be based on the type and quality of evidence that is submitted, not on evidence that you think should be there.

˜If you need to request additional evidence, you should provide some explanation of the deficiencies in the evidence already submitted and if possible, examples of persuasive evidence that the petitioner might provide to corroborate the statements made in the petition.  If a petitioner has submitted evidence that he or she believes establishes the alien's extraordinary ability, merely restating the evidentiary requirements or saying that the evidence submitted is not sufficient will not give the petitioner any clear guidance in overcoming the deficiencies.

˜As noted above, under 8 CFR 204.5(h)(5), the beneficiary must intend to continue in the area of his or her expertise.   Note though that there are instances where it is difficult to determine whether the alien’s intended employment falls sufficiently within the bounds of his or her area of extraordinary ability.  Some of the most problematic cases are those where the beneficiary’s sustained national or international acclaim is based on his or her abilities as an athlete, but the beneficiary’s intent is to come to the United States and be employed as an athletic coach or manager.  Competitive athletics and coaching rely on different sets of skills and in general are not in the same area of expertise.  However, many extraordinary athletes have gone on to be extraordinary coaches.  In general, if a beneficiary has clearly achieved recent national or international acclaim as an athlete and has sustained that acclaim in the field of coaching/managing at a national level, adjudicators can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that we can conclude that coaching is within the beneficiary’s area of expertise.  Where the beneficiary has had an extended period of time to establish his or her reputation as a coach beyond the years in which he or she had sustained national or international acclaim as an athlete, depending on the specific facts, adjudicators may place heavier, or exclusive, weight on the evidence of the beneficiary’s acclaim as a coach or a manager.

1.  Alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the alien's field (8 CFR 204.5(h)(3)(i)).   In evaluating evidence submitted in support of this criterion, the focus should be on the alien beneficiary's receipt of the award, as opposed to his or her employer's receipt of the award.  In addition, you should determine whether the prize or award itself meets the requisite standard of national or international recognition for excellence.  In determining the nature of the award or prize, relevant considerations would include, but not be limited to, the number of awardees or prize recipients as well as any regional limitations on competitors (a provincial award limited to competitors in that province, for example, might have little national significance.)  Another relevant consideration is that awards with national recognition will probably be reported in the media.  While such media reports may not focus on the alien, they might be relevant to the degree of recognition of the award itself.

Note:  Scholarships, fellowships and competitive postdoctoral appointments generally are not the type of "nationally or internationally prizes or awards for excellence" that would establish that the alien has achieved sustained national or international acclaim and recognition in the alien's field of expertise.  Similarly, most academic or junior athletic/music awards would not satisfy this criterion

2.  Membership in Associations (8 CFR 204.5(h)(3)(ii)).  In order to satisfy 8 CFR 204.5(h)(3)(ii), the petitioner must present persuasive evidence to establish that the alien’s significant achievements in the field were the basis for granting the alien’s membership in the association.  Membership in an organization that is based solely on a level of education or years of experience in a particular field is not sufficient.  Paying a fee or subscribing to an association’s publications is also not sufficient.  Similarly, you should note that membership in certain associations can be a requirement of an occupation, such as union membership or guild affiliation for actors.  Compulsory membership in an association is not indicative of the alien’s advanced standing in the field.  Thus, for example, mere membership in a State bar, in the American Bar Association (ABA), or in the American Immigration Lawyers Association (AILA) should not be considered sufficient, as lawyers are generally required to be members of a State bar, most members of the bar are eligible to become ABA members, and most immigration lawyers may be eligible to join AILA.  Rather, to satisfy 8 CFR 204.5(h)(3)(ii), the petitioner must show that the association’s membership is exclusive, in the sense that membership is limited solely to those who have been judged by their peers as having attained outstanding achievements in the field for which classification is sought.  An alien’s election by her professional peers and colleagues to the National Academies of Sciences and Engineering, an honorific society that currently generally bases membership nominations on original research and accomplishment in the field, therefore would likely be sufficient to satisfy 8 CFR 204.5(h)(3)(ii).  

3. Published Material About the Alien (8 CFR 204.5(h)(3)(iii)).  To satisfy 8 CFR 204.5(h)(3)(iii), the petitioner should submit evidence of published material in professional or major trade publications or in other major media publications about the alien’s contributions to the field that clearly identifies the circulation and the intended audience of the publication.  Regional publications or publications aimed at a particular ethnic or language group generally will be sufficient only if the publications are considered the top publications in the field, or the publications enjoy national or international circulation and reputation beyond that of the publications’ intended audience and the material about the alien beneficiary is published in a section of the publication that is national in scope.  Examples of such qualifying regional publications might include The Wall Street Journal, the New York Times, the New England Journal of Medicine, or the Christian Science Monitor.  The burden is on the petitioner to establish that a particular publication is covered by this regulatory provision.  

In addition, in order to satisfy 8 CFR 204.5(h)(3)(iii), the evidence should establish the significance of the published material submitted as it relates to the alien’s contributions and how the alien is one of that small percent who have risen to the very top of his or her field.  Articles about the organizations and projects that the alien beneficiary is affiliated with or involved in, but that do not mention the alien or only mention him or her in passing, generally are not persuasive.  The alien and his or her accomplishments should be the focal point of the published material.  In addition, marketing materials created for the purpose of selling the alien’s products or promoting his or her services are not generally considered to be published material about the beneficiary.  Please note that, absent further documentation establishing how the alien is extraordinary in a particular field, mere citations to an alien’s work are not sufficient to satisfy 8 CFR 204.5(h)(3)(iii).

4. Judge of the work of others (8 CFR 204.5(h)(3)(iv)).  Evidence that the beneficiary has been, or is judging the dissertation work as an external referee, particularly of a Ph.D. in an area of prominent research or study, could also be probative of the alien's outstanding ability as a judge of the work of others for purposes of satisfying 8 CFR 204.5(h)(3)(iv).  In addition, evidence that an alien has been asked to review scientific or scholarly articles written by others in the field prior to their acceptance for publication in journals or periodicals that enjoy widespread circulation and readership in the field of endeavor may satisfy this criteria.  You should bear in mind; however, when evaluating such evidence, that it is being submitted to establish that the alien has sustained national or international acclaim as well as recognition in the alien's field of expertise.  It is therefore reasonable for the petitioner to submit an explanation of the significance of the alien's experience in judging the work of others in the field.

5. Alien's contributions to the field.  (8 CFR 204.5(h)(3)(v).  To satisfy 8 CFR 204.5(h)(3)(v), the petitioner must submit evidence of the beneficiary’s original contributions of major significance to the alien's field of endeavor.  Although funded and published work may be “original,” this alone is insufficient; you must evaluate whether the work constitutes a major, significant contribution to the field.  Note that, in evaluating such evidence, a footnoted reference to the alien's work without evaluation, an unevaluated listing in a subject matter index, or a negative or neutral review of the alien's work would be of little or no value.  On the other hand, peer-reviewed presentations at academic symposia or peer-reviewed articles in scholarly journals that have provoked widespread commentary and/or received acclaim from others working in the field, unsolicited requests for copies of the alien’s scientific abstracts or published research papers, entries (particularly a goodly number) in a citation index which cite the alien's work as authoritative in the field, or participation by the alien as a reviewer for a peer-reviewed scholarly journal would very likely be probative of the beneficiary’s ability.   

˜Scientific Citations: In the scientific community, citations are generally required when a researcher uses the research findings of another scientist as part of their own research.  Such citations are, therefore, not considered to be particularly probative as to whether the alien has extraordinary ability in the field of endeavor, unless shown otherwise.  When evaluating citations to an alien beneficiary’s work, you must determine the significance of the alien beneficiary’s original contribution to the field that resulted in the citation.  In some cases, inclusion of a lengthy list of referenced articles that often accompany published articles might be probative of the alien’s ability because the alien’s contributions served as a significant, original “find” that spurred the subsequent references and citations.  Similarly, frequent citation by independent researchers may demonstrate widespread interest in, and reliance on, the beneficiary’s work and may serve as persuasive evidence that the beneficiary is authoritative in the field.  For example, published research by others in the field that is based on, and consistently references and cites, an advanced technology for monitoring environmental ecosystems developed by the alien beneficiary would likely be relevant to a finding of extraordinary ability.  On the other hand, published research by others in the field that cites to the alien beneficiary’s similar research techniques (i.e., cites confirming that the alien beneficiary’s previous research was also conducted using a 4 ml vial), without accrediting any significant research findings to the alien, may not be probative.

˜Bear in mind that scientific researchers live constantly under the cloak of potential plagiarism and so must always give credit to other investigators involved in the same small area of investigation.  Such credit may or may not say anything to the merits of the other scientists' work.  Some of the listings that you may see are simply aids to finding literature available in the field and not an evaluation of the work.  It is for you to evaluate the evidence submitted to determine whether such citations are an indication that the alien has the requisite ability.  

6.  Scholarly Articles.  To satisfy 8 CFR 204.5(h)(3)(vi), the petitioner must present evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.  The evidence should establish the significance or value of the published material and how it has set the alien apart as one of the small percent who has risen to the very top of his or her field.  The most persuasive evidence in this regard is unsolicited contemporaneous documentation that shows that independent experts or organizations in the field consider the published material to be significant or that the beneficiary’s findings or methodologies have been widely cited or adopted by the industry or professional community at large.  For example, peer-reviewed presentations at academic symposia or peer-reviewed articles in scholarly journals that have provoked widespread commentary and /or received acclaim from others working in the field of endeavor, might satisfy this criterion.  On the other hand, a book by the alien that was published by a "vanity" press, or a poster or abstract presentation at an academic symposium that garnered little or no commentary from others involved in the field would be of little or no value.  Likewise, the alien’s internal work product that was created for his or her employer or its clients as part of the scope of the alien’s employment is not generally considered to be significant for purposes of satisfying 8 CFR 204.5(h)(3)(vi) (which requires publication of material in professional or trade publications or major media), unless shown otherwise through corroborative, independent documentary evidence.

Note:  It is significant to note that the March 31, 1998 Report and Recommendations of the Association of American Universities’ Committee on Postdoctoral education, set forth (on page 5 of its report)  recommended definition of a postdoctoral appointment.  Among the factors in this definition were the acknowledgement that the “appointment is viewed as preparatory for a full-time academic and/or research career” and that “the appointee has the freedom, and is expected, to publish the results of his or her research or scholarship during the period of the appointment.” (emphasis added) Thus, this national organization considers publication of a researcher’s work to be “expected,” rather than a mark of distinction, among postdoctoral researchers.  Note:  When scientific citations are presented as evidence of the alien's publications, please refer to the discussion in the section on 8 CFR 204.5(h)(3)(v), above.

Note also:  Articles that were published in foreign language periodicals should be accompanied by an English translation sufficient to demonstrate that the alien beneficiary authored the piece.  See 8 CFR 103.2(b)(3).  Obtaining full English translations of published material can be burdensome, thus you should not request complete translations unless absolutely necessary to evaluate to quality of the material.   In many cases, such an evaluation of the material can be sufficiently conducted without a complete translation.  The evidence should also show the date that the article was published and the circulation and readership of the periodical.  

Note also:  In some cases, such as those involving scientists, this criterion might be satisfied by a showing of conference presentations, provided such evidence is indicative of the requisite sustained national or international acclaim.  

7. Display of the alien's work in the field at artistic exhibitions or showcases.  (8 CFR 204.5(h)(3)(vii)).  In evaluating evidence submitted to meet this criterion, the mere fact that the alien has had his or her work exhibited does not necessarily establish the alien's extraordinary ability within the field.  The petitioner must demonstrate the exhibition or showcase is itself of distinction and that the alien beneficiary’s exhibited work at such an exhibition or showcase was itself of such significance as to be probative of the fact that the alien has sustained national or international acclaim in his or her field of expertise.  On the other hand, where the evidence submitted shows merely that an artist or performer had a "bit part" role in a significant artistic performance or that the alien's overall contribution to an exhibit displayed at a distinguished venue was very minor, such evidence may not be very persuasive in terms of establishing that this criterion has been met.  

8. Performance in a critical or leading role for organizations or establishments having a distinguished reputation.  (8 CFR 204.5(h)(3)(viii)).  Pursuant to 8 CFR 204.5(h)(3)(viii), evidence must show that the alien has performed in a "leading or critical role" within a distinguished organization or establishment.  The evidence must establish that the alien has played more than just a supporting role and that the organization or establishment has a distinguished reputation or has hosted other distinguished productions in the recent past.  In evaluating such evidence, you must examine the position that the alien was hired or appointed to fill on behalf of the organization or establishment and determine whether the alien's position therein is (or was), a “leading” or “critical” one.  You must also determine whether the organization or establishment itself is in fact distinguished.  

Note:  In evaluating the alien's position, the key question is whether the alien's role was leading or critical to the entire organization, as opposed to a mere department within the organization.  

Note also:  Documentation about the organization or establishment that does not specifically refer to the beneficiary and his or her contributions is not persuasive evidence of the significance of the role played by the beneficiary on behalf of the organization; it merely goes to the reputation of the organization or establishment itself.

9. High salary or remuneration (8 CFR 204.5(h)(3)(ix)).   To satisfy this criterion, the petitioner must show that the alien beneficiary has commanded a significantly high salary or remuneration for services, in relation to others in the field.   In this regard, evidence that the alien has commanded a salary or other remuneration significantly higher than others at the alien's workplace would not be sufficient to establish the alien's outstanding role within his or her field without further, objective additional evidence.  Additionally, the submission of official U.S. Department of Labor prevailing wage rate information for the alien's field of endeavor, without other corroborative evidence, generally would not meet this criterion, as it might not establish whether the salary or other remuneration is "significantly" higher than that of others in the field.  Such prevailing wage rate information should normally be accompanied by other documentation satisfactorily explaining why the petitioner believes the alien beneficiary's salary or remuneration is significantly higher than that of others in the alien's specific field.

10. Commercial success in the performing arts (8 CFR 204.5(h)(3)(x)).   This criterion focuses on volume of sales and box office receipts.  Therefore, the mere fact that an alien has recorded and released musical compilations or performed in theatrical, motion picture or television productions would be insufficient, in and of itself, to establish eligibility under this provision.   

1)  An alien beneficiary who is an Olympic coach whose athlete wins an Olympic medal while under the principal tutelage of the alien might provide support to a petitioner’s argument that the success of this athlete is evidence comparable to that in 8 CFR 204.5(h)(3)(i), since that section might not readily apply to certain types of athletic coaches, if coaches in their field do not typically receive nationally recognized coaching awards.

2) A bestselling author might be able to demonstrate evidence comparable to the specific evidence required for commercial success in 8 CFR 204.5(h)(3)(x) even though he or she is not a performing artist.  

3) Election to a national all-star team might serve as comparable evidence for evidence of memberships in 8 CFR 204.5(h)(3)(ii).  

Note:  There is no comparable evidence for the one-time achievement of a major, international recognized award.   

Note also:  As discussed above, in certain cases, one type of evidence may be sufficient to satisfy more than one of the criteria set forth in 8 CFR 204.5(h)(3).  Similarly, in some cases, one type of “comparable” evidence submitted in connection with 8 CFR 204.5(h)(4) might satisfy more than one of the criteria set forth in 8 CFR 204.5(h)(3).