Frequently Asked Questions for EB1-A (Alien of Extraordinary Ability)

EB1-A is a first-preference, employment-based immigrant category for foreign nationals who have reached the top of their field of endeavor. This classification requires no labor certification. Visas are also current, so once the case is approved the foreign national may obtain a Green Card without waiting for a priority date. No job offer is required either. Answer provided by Liu & Associates, P.C.

An alien of extraordinary ability has extraordinary ability in the sciences, arts, education, business, or athletics, demonstrated by sustained national or international acclaim and recognized in the field through extensive documentation. The foreign person must also seek to enter the United States to continue working in the field of endeavor that is the subject of that acclaim, and his or her presence and activity must benefit the United States. Answer provided by Liu & Associates, P.C.

“extraordinary ability“ means a level of expertise showing that the individual ranks among the small percentage who have risen to the very top of the field of endeavor. Answer provided by Liu & Associates, P.C.

The foreign national may self-petition with USCIS for classification in this preference, or an employer may file as sponsor if the foreign national is employed. Answer provided by Liu & Associates, P.C.

A petition under EB-1A is filed on Form I-140 (Immigrant Petition for Alien Worker). Answer provided by Liu & Associates, P.C.

No labor certification is required before filing an I-140 in any EB-1 category. Answer provided by Liu & Associates, P.C.

No. This category requires no job offer, and the foreign national needs no employer sponsor to file. Answer provided by Liu & Associates, P.C.

Major advantages of EB-1A classification are:

1. No labor certification is required.
2. A job offer or permanent position is not required.
3. Self-petition is allowed.
4. All visas are current.

A Green Card is therefore obtained much faster in this category than in others. Answer provided by Liu & Associates, P.C.

In EB-1A cases the petitioner bears the entire burden of proof. The petitioner must present substantial evidence of three of the ten regulatory criteria the alien seeks to satisfy, or evidence of a one-time major prize. For a qualified beneficiary, the odds of approval depend largely on how the case is presented. The approval rate for EB-1A cases in 2010 was 62%, and the overall rate is rising steadily. (See approval rates from 2005 to 2010). EB-1A petitions filed by Liu & Associates, P.C. have had an approval rate of nearly 100%. Answer provided by Liu & Associates, P.C.

For an EB-1A case, identify which of the ten regulatory criteria the alien seeks to satisfy and the evidence supporting each one. Also provide a statement and evidence that the alien beneficiary is coming to the U.S. to continue working in the area of sustained national or international acclaim. Answer provided by Liu & Associates, P.C.

USCIS requires extensive documentation establishing the alien's extraordinary ability. A major internationally recognized award, such as the Nobel Prize or the Academy Award, can demonstrate national or international acclaim. Otherwise, the foreign person must provide at least three of the following types of evidence:

1. Receipt of a lesser national or international prizes or awards for excellence in the field of endeavor.
2. Membership in associations in the field which require outstanding achievement as a condition of membership.
3. Published material about the foreign person in professional or major trade publications, or other major media. (These items must include the title, date, author, and must be translated into English.),
4. The foreign person's participation, on a panel or individually, as a judge of the work of others in the same or a related field.
5. Evidence of original scientific, scholarly, artistic, or business-related contributions of major significance in the petitioner's field.. For those in a scientific or scholarly field, this evidence will usually be through publications.
6. Authorship of scholarly articles in the field, in professional journals, or other major media (national newspapers, magazines, etc.).
7. Display of the petitioner's work at artistic exhibitions or showcases.
8. Performance in a leading or critical role for organizations or establishments that have a distinguished reputation.
9. Evidence that the foreign person commands a high salary or other significantly high remuneration in relation to others in the field.
10. Commercial success in the performing arts as shown by box office receipts or sales records, cassette, compact disc, or video sales, or other comparable evidence if the above types of evidence do not readily apply to the alien's occupation.

Under USCIS regulations, the petitioner establishes the foreign person's intent to continue working in the field with letters from prospective employers, evidence of prearranged commitments such as contracts, or a statement from the foreign national describing plans to continue work in the field in the United States. Answer provided by Liu & Associates, P.C.

USCIS regulations do not require separate documentation that the foreign person's admission will substantially benefit the United States; satisfying the other statutory requirements ordinarily meets this requirement. Answer provided by Liu & Associates, P.C.

The legislative history indicates that a major international prize is an award such as the Nobel Prize. The AAO (Administrative Appeals Office) says other one-time awards enjoying truly international recognition may include the Pulitzer Prize, the Academy Award, and the Olympic Gold Medal. The AAO concluded that these prizes are household names, immediately recognized even by the general public as the highest honors in their respective fields.

Lesser nationally or internationally recognized prizes or awards are a lower standard than a major internationally recognized prize, but the petitioner still bears the burden of proving by substantial evidence that the prizes or awards are in fact nationally or internationally recognized. For such prizes or awards, submit evidence of the number of persons nominated, a description of the prize or award, and whether it recognizes team work or individual performance. USCIS has issued these rulings on this evidence requirement:

1. Academic scholarships or grants do not suffice;
2. Submit evidence on how many individuals were nominated for the award or prize and on the eligibility criteria;
3. Team awards carry less weight than individual awards; and
4. Local awards do not suffice.

For the distinction, see the difference between a major internationally recognized prize and lesser nationally or internationally recognized prizes or awards. Answer provided by Liu & Associates, P.C.

For membership in selective associations, the AAO has reiterated that the petitioner must document the membership criteria and show that those who review prospective members’ applications are recognized as national or international experts in their disciplines or fields. The petitioner must show that the association requires outstanding achievement as an essential condition of admission. Membership in trade unions or provincial organizations receives no weight. Likewise, requirements based on employment or activity in a given field, a fixed minimum of education or experience, standardized test scores, grade point averages, recommendations by colleagues or current members, or payment of dues do not satisfy this criterion, because none constitutes outstanding achievement. Membership in an association that evaluates applications at the local chapter level also does not qualify. In short, an association's overall prestige is not determinative; the membership requirements control, not the association's reputation. The record must show that the organization requires outstanding achievements of its general membership. Answer provided by Liu & Associates, P.C.

Published materials about the applicant must show that major media or national broadcast networks covered the applicant's work in detail. Supplied clippings should include the publication's title or date. Local publications receive no weight.

Clippings about projects or productions the petitioner was involved in receive little weight when the article gives the applicant little attention. For example, serving as an unnamed cast member in a widely publicized play does not earn national or international acclaim. Answer provided by Liu & Associates, P.C.

Assertions that the alien led workshops, sat on panels, or performed and led audience discussions at national festivals and conferences must explain how those activities amount to judging the work of others, and every claimed participation must be documented. Answer provided by Liu & Associates, P.C.

On contributions in the field, the AAO holds that the evidence must show more than that the applicant has been “successful“ in his or her field; the record must establish that the applicant's contributions set him or her significantly above others in the field. Answer provided by Liu & Associates, P.C.

Articles written by the foreign person must appear in nationally or internationally circulated journals, and in prestigious journals that apply strict selection. USCIS has ruled that where publication of scholarly articles is normal in a field, such articles may have little value in proving that the applicant “is one of the small percentage who have risen to the very top“ of that field of endeavor. Answer provided by Liu & Associates, P.C.

Submit evidence of the alien's importance within the organization, or that the organization has a distinguished reputation, by affidavit or other documentation. The AAO has also implied that even when the applicant held a leading role in a production or project, further evidence that the production or project succeeded must be submitted. Evidence that the applicant is merely being considered for major roles or projects receives little or no weight, because the alien must establish eligibility for EB-1 status as of the petition's filing date. Answer provided by Liu & Associates, P.C.

Whether the applicant's salary matches that of top persons in the field is determined by comparison with others holding a similar role, position, or expertise. That comparison must account for factors other than ability when assessing the applicant's relative salary. Evidence of high compensation for a single project or performance does not justify a general finding that the applicant commands a high salary. Answer provided by Liu & Associates, P.C.

Yes. Other comparable evidence is considered when the listed types do not readily apply to the alien's occupation. The regulation leaves “comparable evidence“ undefined, giving the employer and alien flexibility to document the alien's qualifications. Under the criteria above, USCIS may also require more than three categories of evidence in a particular case. Answer provided by Liu & Associates, P.C.

Define the field narrowly. Because the foreign person must represent a “small percentage who has risen to the very top“ of the field of endeavor, the actual field must be defined before deciding whether the foreign person has extraordinary ability in it. A narrowly defined field makes it easier to argue that the foreign person has risen to the top.

Remember that a narrowly defined field of endeavor makes it more likely that you have risen to the top of that field. Consider this example: our client Mr. Li was a PhD student in computer science whose research focused on terahertz application. As a student who still needed his professor's instruction, Mr. Li could not easily be shown to have risen to the very top of terahertz application. He had, however, earned a master's degree in integrated circuit design and accumulated a number of papers in that field. Our firm therefore defined his field as a combination of terahertz and IC design, exploring the application of terahertz with integrated circuits. USCIS approved Mr. Li's employment-based, first-preference immigrant visa as a priority worker of extraordinary ability, on evidence showing he ranked among the top researchers combining IC design and terahertz application. Had Mr. Li defined his field more broadly, such as “outstanding researcher in the field of terahertz application”, his credibility as an expert in both fields would have been diminished.

Take Advantage of your Previous Education Background and Working Experience

Most applicants seeking EB-1A classification earned their bachelor's or master's degrees in their own country, and many have substantial work experience. Both are essential to defining their endeavor in the petition letter. A narrow, specific field definition makes it more convincing to argue that the applicant is one of few experts in the field and has risen to the very top of the endeavor. Answer provided by Liu & Associates, P.C.

One way to answer USCIS questions about whether the foreign person “is one of the small percentage who have risen to the very top“ of the field is to present evidence comparing the foreign person with those who are average or typical in that field. For example, in a field where publishing scholarly articles is typical, the applicant could show that his or her articles appeared in the field's most prestigious journals, underwent peer review there, or were widely cited in other scholarly articles.

Second, compare the applicant’s qualifications with those of applicants in approved cases. USCIS sought to downplay comparison with other approved cases in the same field, but the court noted that the agency's own rules make comparison with others in the field the controlling standard for extraordinary ability status. How USCIS has treated others in the field with comparable qualifications is therefore highly relevant. Answer provided by Liu & Associates, P.C.

In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of an EB-1A petition in the Kazarian case. The AAO determined that Kazarian sets out a two-part approach:

Step 1: The adjudicator determines whether the beneficiary has submitted evidence meeting the criteria for the immigration classification sought, as the USCIS rules require.

An EB1-A extraordinary ability petition, for example, must include evidence of a major internationally recognized award, such as a Nobel Prize, Academy Award, or Pulitzer Prize, or at least three of the ten types of evidence listed in the rules. To decide whether the applicant received a major award (quite unusual) or meets at least three listed criteria, adjudicators review the evidence to count how many evidentiary criteria are satisfied. In the first step, the adjudicator does not weigh the quality of the evidence, but merely decides whether enough evidence was submitted to satisfy the prongs claimed. Once at least three evidentiary criteria, or one major evidentiary criterion, are satisfied, the adjudicator proceeds to the second step.

Step 2: Once the petition satisfies the first step, the adjudicator must consider all submitted evidence as a whole to determine whether the foreign national meets the level of expertise the category requires. In this phase the adjudicator weighs all the evidence and decides whether, cumulatively, it proves by a preponderance of the evidence that the I-140 beneficiary satisfies the category's general definition.

For an EB-1A case, the adjudicator must determine as a whole whether the applicant sits at the very top of the field of endeavor, and that determination weighs the quality of the evidence. For instance, under the criterion for judging the work of others, an internal judging responsibility is inferior to an external one. For scholarly articles, the number of citations is a proper consideration in the final merits determination. In sum, the two-step analysis does not depart substantially from the standard USCIS applies to decide a petition's merits, and the quality of the evidence remains essential. Our firm nonetheless changed its petition format immediately after the USCIS memo was released, adapting to the new approach and expediting approvals for our clients.

Answer provided by Liu & Associates, P.C.

Yes. To request Premium Processing Service for Form I-140, you must also file Form I-907, Request for Premium Processing Service. Send Forms I-140 and I-907 together to the address in the Form I-907 filing instructions. Do NOT send Premium Processing requests to a Lockbox facility. Answer provided by Liu & Associates, P.C.

Yes. If Form I-140 is already on file and you wish to request Premium Processing Service, file Form I-907 directly with USCIS; see the Form I-907 filing instructions for details. Include the required fee and either a copy of Form I-797C, Notice of Action, showing that your Form I-140 was accepted, or a copy of the transfer notice, if applicable. To match Form I-907 with the pending Form I-140, answer questions 1 through 5 in Part 2 of Form I-907 in full; otherwise Form I-907 will be rejected. Answer provided by Liu & Associates, P.C.

If your I-140 is approved, your spouse and unmarried children under 21 are derivative beneficiaries. Answer provided by Liu & Associates, P.C.

No specific minimum number of publications is required; USCIS decides whether the petitioner meets this criterion case by case. Answer provided by Liu & Associates, P.C.

Yes. You must file a separate Form I-140, with its own fee and supporting documentation, for each visa category requested. Do not check multiple categories on a single I-140 Form. Answer provided by Liu & Associates, P.C.

Form I-140 may be filed electronically or by mail, but supporting evidence must be sent to the service center. An e-filed Form I-140 is routed automatically to the appropriate Service Center, and the receipt shows where it was routed. For e-filed petitions, review the filing receipt and receipt number carefully and note the receiving location. All further communication, including supporting documents, must go to the receiving location shown on your e-filing receipt. Answer provided by Liu & Associates, P.C.

No, because all visas are current. Answer provided by Liu & Associates, P.C.

Yes. The petitioner or the Form G-28 representative may write to USCIS to request withdrawal of the I-140 petition. Answer provided by Liu & Associates, P.C.

The petitioner or the Form G-28 representative may write to USCIS to request withdrawal of the I-140 petition. A withdrawal request should include:

1. A statement that the Form I-140 petitioner wishes to withdraw the petition;
2. The Form I-140 petition receipt number;
3. The name, address and phone number of the petitioner;
4. The name of the alien beneficiary;
5. The alien registration number of the alien beneficiary, if known;
6. The petitioner's signature or that of the Form G-28 representative.

Answer provided by Liu & Associates, P.C.

The law sets no restriction on when you may file a new EB-1A petition after an earlier filing is rejected. A previously rejected petition does not bar a later petition in any classification. Unless your circumstances have improved, however, submitting a similar petition again is inadvisable, because approval is unlikely. Answer provided by Liu & Associates, P.C.

Organize the evidence as follows:

1. File all required documentation and evidence with the petition. Where the required evidence described in the instructions and regulations is not provided initially, an I-140 petition may be denied without a request for evidence.
2. Provide clear, legible copies of any photocopied documents.
3. Every foreign language document must be accompanied by an English translation. A competent translator must certify the translation and verify in writing that “the translation is true and accurate to the best of the translator's abilities”. Stapling the English translation to the foreign language document is helpful.
4. When documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. You need not send the full dissertation, thesis, or research paper written by the alien beneficiary, or one citing the alien beneficiary's work; include the title page, the portion(s) citing the alien's work, and the “works cited“ or bibliography.
5. For petitions supported by substantial documentation, tab and label each evidentiary exhibit at the bottom of its first page, and provide a list of the exhibits with the eligibility criteria each establishes. Identify in the exhibit list any exhibit submitted to meet multiple eligibility criteria.

Answer provided by Liu & Associates, P.C.

A letter of recommendation, also called a reference letter, is written by an expert in the alien's field or another authoritative person in an allied or related field. Recommendation letters are essential to petitions for employment-based immigration benefits. Because adjudicating officers are rarely experts in an academic field, the only way they can determine whether you meet the legal standard (extraordinary ability) is by examining the evidence submitted, and a recommendation letter is among the most important evidence. Answer provided by Liu & Associates, P.C.

USCIS takes the position that an individual with international recognition should be able to produce ample unsolicited materials reflecting that acclaim. Letters from independent, outside sources therefore carry more weight, because they prove the alien's accomplishments. Contributions not praised widely beyond the alien's current and former circle of acquaintances cannot establish sustained international recognition, so the government gives less weight to letters from that immediate circle when offered for the criterion of original contributions of major significance in the field. Recommenders from your inner circle are still strong candidates, however, if they are distinguished experts or authorities in your field of endeavor.

Beyond expertise in your field of endeavor, the ideal recommender knows your research and contributions well enough to address them specifically. A prominent reputation in your field is therefore preferable to proximity in your circle of acquaintances, but the perfect candidate is an expert who has familiarized himself or herself with your contributions. Answer provided by Liu & Associates, P.C.

Include the following in a recommendation letter:

1. Qualifications of the recommender: A recommendation letter must describe its drafter. Where the drafter comments on the foreign person's achievements or research, the letter should include a statement establishing that individual's qualifications to judge the foreign beneficiary's work.
2. Helpful testimonials from experts: Expert testimonials about your accomplishments are crucial. Keep in mind, though, that they should bolster the argument that you meet the standard set by law, i.e., that your expertise exceeds the level ordinarily encountered in your field. Evidence that merely establishes competence, or that fails to set you apart from others in the field, does not support your case: it carries little weight and may even be used to deny the petition.
3. Substantive information: A good recommendation letter highlights the foreign beneficiary's high level of unique expertise. A letter from the foreign beneficiary's employer or professor should specify the work the foreign national is responsible for and the requirements of the job. Although priority workers need no job offer, an employer's letter may cite such a position to show that very few individuals can fill it (i.e., only top individuals in the field or those with exceptional ability can perform the required duties) and that the foreign beneficiary is one of those few. Recommendation letters that only briefly discuss the petitioner's activities and call him or her knowledgeable, without specific information on how the petitioner's contributions significantly and consistently influenced the field, are insufficient.

Answer provided by Liu & Associates, P.C.

USCIS sets no specific number. An EB-1 case should generally include three to seven letters of recommendation. Answer provided by Liu & Associates, P.C.

Recommendation letters are difficult to draft, yet strong ones substantially improve the chance your petition succeeds. Once you retain us, our firm helps you obtain good recommendation letters step by step:

1. We provide detailed information on recommendation letters and walk you through their purpose, format, and content.
2. We discuss potential candidates to write your recommendation letters with you.
3. You provide detailed information on the recommenders' credentials and expertise, your connections, the relationship between your research and theirs, and similar matters.
4. Once we receive that information, our attorneys and legal team draft the recommendation letters for you.
5. You send the letters to the recommenders to review and sign.
6. Before submitting the petition, we review any substantially changed letters to determine whether the recommender must sign an updated version.

Answer provided by Liu & Associates, P.C.

If you self-petition, changing employers does not affect the status of your case, and the petition remains active. If your employer sponsors the petition, a new petition may be necessary. Answer provided by Liu & Associates, P.C.

Our firm has successfully petitioned for Ph.D. students to obtain Green Cards in the EB1-A category. Because Ph.D. students often still need their professors' instruction, arguing that they have reached the very top of the endeavor can be difficult. Certain tips for defining the field of endeavor make that showing easier. To learn more, please read my blog article, “Qualifications of Aliens of Extraordinary Ability-Have you Risen to the Very Top of your Endeavor?“ In our experience, Ph.D. students petitioning for EB1-A immigration benefits succeed at about the same rate as other applicants. Answer provided by Liu & Associates, P.C.

The F-1 visa is a nonimmigrant visa, but that does not bar an F-1 holder from applying for a Green Card. Although an F-1 holder cannot have dual intent when applying for the nonimmigrant visa, holders of nonimmigrant visas such as F-1 and J-1 may change intent after receiving the visa. A nonimmigrant visa holder need not switch to an H or L visa, which permits dual intent, before filing a Green Card petition. Generally, anyone who meets the qualification requirements may file an immigration petition at any time. If your remaining F-1 time is too short to finish your degree, however, it is better to extend the F-1 visa before filing the Green Card application. Answer provided by Liu & Associates, P.C.

NIW and EB1-A have different requirements, and preparing each application differs significantly. Successful NIW cases are not limited to foreign nationals who have risen to the very top of their field, but presenting petition materials in the most favorable light aids approval in both categories. For example, the petitioner should construe the foreign national's field as narrowly as credibility allows, because a narrower frame of reference compares the foreign national with far fewer U.S. peers. Do not narrow the field so far that the AAO finds the petition suspect, and support the definition of the foreign beneficiary's field of expertise with documentation. After I-140 approval, the two classifications differ little for the later I-485 application. Filing two petitions, such as a NIW and an EB1-A, at the same time is possible; some foreign nationals file two I-140 petitions simultaneously in EB-1 and NIW. Nothing in the law prohibits multiple filings, and multiple filings increase the chance that at least one I-140 petition will be approved. Answer provided by Liu & Associates, P.C.

Yes. No rule requires published articles to apply for or obtain approval of an EB-1A petition, though publications often improve the chances of approval because they help establish your original contribution and authorship. You may still support your case with evidence satisfying other criteria listed by the law. Answer provided by Liu & Associates, P.C.

You may still file under EB-1A without awards in your field. No rule requires awards to apply for or obtain approval of an EB-1 petition, though awards often improve the chances of approval by satisfying one of the criteria listed by the law. You may still support your case with evidence satisfying other criteria listed by the law. Answer provided by Liu & Associates, P.C.

Yes. For more information on applying for Alien of Extraordinary Ability (EB1A) from outside the U.S., please click here.

Yes, you may apply under EB-1A now and obtain your J-1 waiver later. Even with an approved I-140, you remain subject to the two-year foreign country residence requirement and must obtain the J-1 waiver or satisfy that requirement before adjusting status to permanent resident. A J-1 waiver is not needed before submitting an I-140 petition. The two-year foreign residency requirement prevents adjustment from J-1 to permanent residency, but it does not prevent filing an I-140 petition. You may also prepare the I-140 and the J-1 waiver concurrently. If the I-140 is approved before the J-1 waiver, you must wait for the waiver before submitting the I-485 application for adjustment of status. Answer provided by Liu & Associates, P.C.

We charge a flat attorney fee for I-140s eligible for our "Approval or Refund" service. Despite the comprehensive service provided, Liu & Associates, P.C. keeps the attorneys' fee affordable and reasonable. Our goal is to make the American dream achievable for every qualified foreign beneficiary within their means. Answer provided by Liu & Associates, P.C.