EB-1 Extraordinary Ability

EB1 Extraordinary Ability Approvals – Part I

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EB1 Extraordinary Ability – Part I

In continuation of our ongoing segment of national interest waiver approvals, we’re going to discuss another type of self sponsored residency applications.  The EB1 Extraordinary Ability carries both a higher standard of approval and a higher priority for approved applicants.  For Indian and Chinese nationals, an EB1 application means they can obtain US residency (green card) in a matter of weeks or months because the EB1 category is current and is not backlogged or retrogressed like the EB2 NIW category.

In the case I am going to discuss, the applicant was a Chinese national.  We filed the EB1 petition on October3, 2005 and the case was approved on October 11, 2005.  Unfortunately the issuance of the green card in this case was delayed due to an incomplete medical examination by the USCIS civil surgeon but it was still ultimately approved.

EB1 Extraordinary Ability Requirements

In order to qualify for the EB1-EA, the applicant must have won a Nobel Prize OR show documentation in three of the following areas:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  • Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
  • Published material about the alien in professional or major trade publications;
  • Evidence that the alien is a judge of the work of others in the field;
  • Evidence of the alien’s original contributions of major significance to the field;
  • Authorship of scholarly articles;
  • Display of the alien’s work at artistic exhibitions or showcases;
  • Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  • Evidence that the alien commands a high salary in relation to others in the field; or
  • Evidence of commercial success in the performing arts.

    EB1 Extraordinary Ability Approved Case Part I

    Degree: BA in Biology

    Position: Research Associate at a US University

    Field of Expertise: HIV/AIDS

    Publications: 25

    Citations: 200 including self citations

    Conferences: 54

    Recommendation Letters: 6

    The applicant in this case was a Chinese national.  The EB1 application was approved in approximately 1 week.  This application was filed in 2005 and processing times do vary.  From 2006 through 2008 we saw processing times range from 6-12 months but now they have settled back down and we are regularly seeing approvals issued in 3 months or less.

    While the applicant was certainly lacking an advance d degree, she more than made up for it by producing a large volume of high impact research and presenting that research at both national and international conferences.  Based on her objective accomplishments, we were able to show that the applicant played a leading role in high level research and that she would continue to play a leadership role in future research.  USCIS agreed with our position and approved the petition in just over one week.

    Green Card Options for PhD Holders

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    In virtually all types of green card application, the foreign national seeking permanent residence must have a sponsor.  Typically the sponsor is the applicant’s employer or there is some type of familial relationship.  For certain PhD holders, or even PhD students, the foreign national can act as both the sponsor and the applicant.

    The two paths to permanent residence that allow self-sponsorship are the EB-1 Alien of Extraordinary Ability category and the EB-2 National Interest Waiver (NIW) category.  While both categories have stringent requirements, the Eb-1 category is much more restrictive and requires the applicant to prove that he or she is one of the top individuals in his or her area of expertise.  Currently, there is no benefit to having an EB-1 application approved over an NIW application except for nationals of PR China and India.  Unless bragging rights are important, most applicants would be better off applying through the NIW category because approvals are easier.

    There are three keys to a successful EB-1 or NIW application.

    1.  Strong credentials.  In our experience, a successful EB-1 applicant should have a PhD, 10+ journal publications, 40+ journal citations, 5+ conference proceedings and previous service for a journal reviewing manuscripts or membership in highly regarded professional organizations.  These are not absolute minimums as we have obtained EB-1 approvals for clients with significantly weaker credentials but this should serve as a guide for potential applicants.  In contrast to the EB-1 requirements, an NIW applicant need only a PhD with 3+ journal publications and 5+ journal citations.

    2.  Strong Recommendation Letters.  Both EB-1 and NIW applicants should obtain at least 4 recommendation letters from various sources.  These letters must be worded correctly or the USCIS officer reviewing the application will use the letters against the applicant to deny the case.

    3.  Persuasive Cover Letter.  It is absolutely imperative to guide the USCIS officer through the application to educate them on the applicant’s accomplishments and why those accomplishments are superior to others.  The cover letter must cite the applicable statutes as well as federal court cases to explain why the applicant meets the legal burden of proof.  The burden of proof rests with the applicant and he or she must demonstrate eligibility for the category.

    It normally takes about 12-18 months to get a decision on the EB-1 or NIW application.  If the applicant fails to demonstrate eligibility and the case is denied, it can be appealed.  Appeals generally take 12 months and most denials are sustained.  The applicant may also choose to refile but in each application, the applicant must disclose previous filings.  Without substantial new accomplishments, the case is likely to be denied again.  Therefore, it is vital to present the best possible case to USCIS in the first application.