Persons of extraordinary ability (EB-1) may become US permanent residents without undergoing the labor certification process.
To qualify, extraordinary ability must be demonstrated in the sciences, arts, education, business, or athletics through sustained national or international acclaim. This ability must be demonstrated through sustained national or international acclaim and achievements must be recognized in the field through extensive documentation.
Persons of extraordinary ability do not require an employer to submit a petition to the USCIS on their behalf since they are permitted to “self-petition”. Although, no offer of employment is required, the person must be coming to the United States in order to continue work in the area of extraordinary ability.
A person of extraordinary ability is one who belongs to that “small percentage” who have “risen to the very top of the field of endeavor”. “Extraordinary ability” is the highest standard used by USCIS (surpassing other standards such as “exceptional ability”).
Our law firm has obtained permanent residence for hundreds of persons of extraordinary ability including scientists, researchers, artists, athletes, horse trainers, and performers.
General Qualifications of the Employee
There are two ways to satisfy the requirements for an EB-1 visa for extraordinary ability: a) Receipt of a major, internationally recognized award (such as Nobel Prize, Academy Award, Pulitzer, Oscar, Olympic Medal); or b) fulfillment of at least three (3) of the following standards:
- Evidence of receipt of a lesser nationally or internationally recognized prize or award for excellence in your field.
- Evidence of membership in associations in your field which demand outstanding achievement of their members. This category is for associations that limit membership to only the most accomplished members of the profession.
- Evidence of published material about you in professional or major trade publications or other major media. Publications could range from journals specific to your field, like The Journal of Otolaryngology, to major newspapers, like The New York Times.
- Evidence that you have been asked to judge the work of others, either individually or on a panel. Some examples include sitting on the Nobel Prize Committee, participating in the peer review process of a scientific article, acting as a member of a thesis review committee, and serving as a judge of an athletic competition.
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field. USCIS will base its judgment of your contribution on the letters of support that others in the field submit. Letters from recognized authorities in your field who specifically describe and consider your contributions original and significant will satisfy this requirement.
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media. This refers to articles that you wrote concerning your work rather than material written about you by others (see criterion 3 above). Publications can include major trade journals or mass media.
- Evidence that your work has been displayed at artistic exhibitions or showcases.
- Evidence of your performance of a leading or critical role in distinguished organizations. Some examples include acting as curator for the Metropolitan Museum of Art, serving as an essential researcher for an important laboratory, or employment as a chef de cuisine at a Michelin star restaurant.
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field.
- Evidence of your commercial successes in the performing arts. Some examples include box office receipts from films or plays, sales of your record, or the sale of a video documentary to a network for a notable sum.
Final Merits Determination
In 2010, USCIS changed its approach to deciding petitions for persons of extraordinary ability after the Federal Court decision in Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010).
USCIS now follows Kazarian’s two-step test: (1) Determine whether the petitioner has submitted evidence that meets the standards stated above; and (2) Determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the extraordinary ability preference category during a final merits determination.
In other words, USCIS first analyzes whether the person’s evidence meets at least three of the above ten factors listed in the regulations. Only then does the agency consider whether he or she is a person of extraordinary ability.