USCIS Updates Guidance on Evidence for EB1 Filings

On September 12, 2023, the U.S. Citizenship and Immigration Services (USCIS) released guidance clarifying how it evaluates evidence to determine eligibility for two EB1 immigrant subcategories, for a person of extraordinary ability (EB1(b). This policy update provides guidance on types of evidence for EB1 petitions and clarity to petitioners and beneficiaries regarding the weight that the USCIS gives to various types of evidence.

Background

Eligibility for EB1(a) or EB1(b) immigrant categories requires a foreign national to satisfy a high evidentiary burden, as explained in the MurthyDotCom NewsBrief, Do I Qualify for EB1? (20.Oct.2021). In the absence of clear guidance regarding what evidence would be sufficient, a petitioner would often be uncertain of the relative strength of a filing. By adding detailed instructions to its Policy Manual, the USCIS provides a better roadmap for presenting stronger EB1 petition filings.

Highlights of the New Guidance

The updated policy guidance details the evidence that may satisfy the required evidentiary criteria for EB1(A) or EB1(B) petitions, respectively, and includes examples of specific evidence and qualifying comparable evidence. The guidance also explains how a USCIS officer will evaluate certain evidence, particularly for the science, technology, engineering, or mathematics (STEM) fields. The Biden administration has recognized the importance of such STEM professionals for U.S. leadership in this field and their impact on the U.S. economy.

The updated guidance goes through each of the ten basic criteria used to determine eligibility for EB1(a) and six basic criteria used to determine eligibility for EB1(b), and discusses how that criterion will be evaluated by the USCIS. The updated guidance further provides examples for each and discusses how officers are to evaluate the criterion. Moreover, the update includes a discussion of possible comparable evidence to establish eligibility.

Conclusion

While this update to the USCIS Policy Manual does not represent a major substantive shift in what is required to qualify for the EB1(a) and EB1(b) categories, it does provide more clarity as to how USCIS officers are expected to review these cases. This should help to facilitate stronger filings of EB1 petitions and minimize inconsistent decision-making by the USCIS.

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