EB1: Extraordinary Ability

Employer and PERM/Labor not required

The general requirement is that the individual should have risen to the “top of her/his field of endeavor.”

(i) as demonstrated by sustained national or international acclaim

(ii) which should be recognized through extensive documentation and

(iii) the foreign national should continue the work in the same field and

(iv) would substantially benefit the U.S. prospectively.

The definitions, being broad, could apply to a number of situations. The general requirement is that the individual should have risen to the “top of her/his field of endeavor.” Additionally, the profession must be categorized as being in the arts, sciences, business, education or athletics.

The law states that receipt of an internationally recognized award like the Nobel or Pulitzer Prize or at least three types of evidence from the list below are needed to satisfy the regulatory criteria.

1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

2. Membership in associations in the field for which classification is sought, which require outstanding achievements of their members as judged by recognized national or international experts in their disciplines or fields.

3. Evidence of the foreign national’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought.

4. Published material about the foreign national in professional or major trade publications or other major media, relating to the foreign national’s work in the field for which classification is sought.

5. Authorship of scholarly articles in the field, in professional or major trade publications or other major media.

6. Evidence of the foreign national’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.

7. Display of the foreign national’s work in the field at artistic exhibitions or showcases.

8. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video / DVD sales.

9. Evidence that the foreign national has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.

10. Evidence that the foreign national has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.

An advantage of this category is that an employer is not required to sponsor this petition.

Two-Step Analysis to Determine Extraordinary Ability

Many types of cases, including EB1 extraordinary ability petitions, are adjudicated by the USCIS based on the two-step analysis described in the USCIS policy memorandum entitled, Evaluation of Evidence Submitted with Certain Form I-140 Petitions. As described in the memo, USCIS adjudicators first count the evidence to determine if the applicant meets at least three of the regulatory criteria. Then the adjudicators make a final merits determination looking at the totality of the evidence provided to decide whether the applicant is a person of extraordinary ability.

Our firm has filed many successful petitions on behalf of such extraordinary persons. In many cases, the Murthy Law Firm will submit petitions in two or three different categories for the applicant, in order to increase the chance of a successful result.

Our firm has successfully convinced the USCIS that applicants satisfy the criteria for extraordinary ability. Examples are: medical researchers, a professor of engineering and a software developer who has been responsible for state-of-the-art innovations that have significantly advanced the field.

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