The Evidentiary Criteria EB-1 – Extraordinary Ability Green Card

We have summarized elements below related to EB-1 Extraordinary Ability Green Cards.  The purpose of this section is to prompt you to consider areas in your professional life that we may be able to pull out and use in the application and to provide those elements to the letter writers. We have found that candidates OFTEN overlook important aspects of their professional life so you should think of anything. If after reviewing this section you think of important accomplishments, you should update your resume  to describe these items.

  1. Alien’s Receipt of Nationally or Internationally Recognized Prizes or Awards for Excellence in the Field of Endeavor

The key to this criterion is noting that the standard is nationally or internationally recognized, not nationally or internationally awarded. “Recognized” generally means that people react to it as impressive. This is a credential that is striking as a distinction, and makes one consider the individual as someone he or she would trust as an expert in the field. The reference letter should consider distinctions earned by the beneficiary, even if they are not specifically entitled “Award.” For example, perhaps the beneficiary was selected for a distinguished position, has received patents, or has been afforded special privileges. When describing these distinctions, the letter should address how and why they meet the standards of national recognition for excellence. Where it is a more traditional “honor,” the letter should address the number of individuals in competition for the award, the basis or criteria upon which it was awarded, and how widely it is regarded in the field of endeavor.

  1. Alien’s Membership in Associations in the Field that Require Outstanding Achievements

The requirements for membership in a particular association are not always evident. Often, it is helpful to reference the bylaws, constitution, or other membership criteria, usually readily available on the Internet, to provide insight into the relative ranking and difficulty of obtaining membership. For example, many professional organizations require nomination, election, and/or recommendations by/from members in good standing. This may establish that the “outstanding achievements” required for membership were judged as such by “national or international experts in their disciplines or fields.” While proof of membership and the requirements of membership should be included as supporting documentary evidence, the referee’s letter can clarify these requirements, and discuss how such memberships are viewed in the field.

  1. Alien’s Participation as a Judge of the Work of Others either individually or on a panel

Even those roles that appear to clearly meet this criterion can make a stronger impact on the petition if the significance of such a role is clarified in the reference letters. For example, legacy Immigration and Naturalization Service (INS) has acknowledged in liaison minutes that “providing official direction for a thesis or a dissertation satisfies the judge of the works of others criteria. Similarly, participation by the alien as a reviewer for peer reviewed scholarly journals will usually be a solid piece of evidence for evaluating the alien’s extraordinary ability.” However, notwithstanding USCIS’s recognition of these roles, ensuring that the particular adjudicating officer is aware of their significance is important, and the referee’s letter is an appropriate venue for such a discussion.

Moreover, the referee’s letter can also detail other roles in which the beneficiary’s evaluation of others is less apparent. Consider, for example, the beneficiary’s role on a committee in which faculty members are evaluated, or in which policies are developed or revised, or if the beneficiary has developed protocols, guidelines, or procedures by critiquing previous standards. These types of roles generally involve judging the work of others, yet they are not easy to document. The referee’s letter can provide the necessary evidence by documenting not only the role, but also the responsibilities, and how they meet this criterion.

  1. Display of Work in the Field at Artistic Exhibitions or Showcases

Similar to publications, the beneficiary’s presentations may also provide evidence supporting other criteria. Details regarding the forum; whether it was a regional, national, or international conference; the sponsoring organization; whether the beneficiary was invited or selected; and whether it was an oral or poster presentation may provide insight into the significance of what is being presented. In addition, the beneficiary’s role vis-à-vis the presentation, whether he or she is a panelist or moderator, may substantiate his or her critical or essential capacity.

  1. Published Material in Professional or Major Trade Publications or Major Media about the Alien

Whether it’s true that there’s no such thing as bad press is a question for another day. What is at issue here is what such published material indicates about the beneficiary. The referee’s letters can be useful in addressing the significance of the source, as well as clarifying how the published material reflects on the beneficiary. For example, if information about the beneficiary is available on the Internet, the referee may comment on the value of the Web site, i.e., is it a site other people in the field frequently reference? In what context is beneficiary discussed? What else is discussed on the site? Another example is citations to beneficiary’s published work. The referee could highlight that the authors who cited to beneficiary’s work relied on beneficiary’s findings; whether such comments were laudatory; and why such citations are significant. This same analysis can be used to evaluate any instance that the beneficiary’s name appears to see if it can be used to add to the total picture that this individual “has risen to the very top of the field of endeavor.” The referee’s letter can be used as the vehicle for preventing or overcoming USCIS’s frequent suggestion that ‘mere references’ to beneficiary’s work do not meet the standards of this criterion.

  1. Alien’s Original Significant, Scholarly Contributions of Major Significance in the Field

If an individual is regarded as an expert in his or her field, it is usually because he or she has in some way contributed something to that field. It may be that he or she has raised the bar by being the first to achieve a certain standard, innovated new technology, discovered an important gene, revived a traditional art form, or, in James Joyce’s case, developed an “experimental use of language” that impacted the art of the novel. In detailing the original contributions of major significance attributed to an individual, the referee must first provide background on the field itself. For example, what is the importance of the field; how does beneficiary’s work fit into this scheme; what is it about the field that makes it difficult, demanding, and challenging; and what percent of the field can perform this type of work?

This description of the field via the reference letters provides a context to understand the importance of what the beneficiary has accomplished in the field, and why such accomplishments can be considered “significant contributions.” The referees’ letters may articulate in detail the underlying goals of beneficiary’s work, how this issue has been dealt with traditionally, the shortcomings of prior approaches, and what the beneficiary has done to overcome these shortcomings. In addition, letters should address the impact of beneficiary’s work on the field, including cost or time savings. Perhaps most importantly, specific concrete examples should be provided in terms that a lay person—the average person on the street—can understand. Detailing what it is that the beneficiary actually does, the degree of skill required to do it, and the impact of such work presents compelling evidence of an original and significant contribution.

  1. Alien’s Authorship of Scholarly Articles in the Field, in Professional Journals, or Other Major Media

Copies of an individual’s publications should certainly be sufficient documentation to establish that a beneficiary has met this criterion. However, merely including copies of beneficiary’s published materials does not necessarily translate the importance of such publications to the USCIS adjudicator. By providing specific details about the journal or source where the material appeared, its circulation or impact factor, as well as a summary of the articles’ findings, the publications may do more than satisfy this criterion, they may also be an important indicator of several other criteria such as original contributions of major significance, judge of the work of others, and leading and critical roles, to suggest a few. For example, if beneficiary’s article is a review, it probably evaluated and critiqued the work of other experts in the field. If the article was published in one of the foremost journals, it may underscore the original contributions of major significance. If the beneficiary was the primary author, it may evidence the beneficiary’s leading and critical roles. The reference letters can articulate to what extent the articles serve as evidence of these other criteria.

  1. Employed in a Critical or Essential Capacity by Organizations with a Distinguished Reputation

This criterion has two major components: (1) the distinction of the institution or organization; and (2) the beneficiary’s responsibilities within the institution or organization. The first can be documented by the reputation or ranking of the institution within the field, for what is it generally known, and how competitive it is to obtain a position within the institution. The second component requires an analysis of the beneficiary’s specific responsibilities. Job titles are often quite misleading, and may not provide a complete picture of the essentiality of the beneficiary’s role. The reference letters can fill in the necessary details such as where the beneficiary fits within the hierarchy, how many people he or she supervises, oversight he or she receives, authority to establish policy or direct research, roles on committees, et cetera.

  1. High Salary

Clearly defining the field is essential to evidencing whether beneficiary “has commanded a high salary . . . in relation to others within the field.” If the field encompasses both academia and the private sector, salaries within the former almost always pale in comparison with those in the latter. The reference letters may explain how individuals in an academic setting spend a great deal of time both performing research and teaching, neither of which are “money-making” endeavors. Moreover, in academic settings, money earned for an innovation or the success of a publication often goes toward supporting other activities of the university or nonprofit entity. Given this background, the beneficiary’s salary can be put into perspective.

Evidence of your commercial successes in the performing arts

For categories where commercial success can be measured (eg. author, motion picture, theater, artist, etc.) the writer can discuss his/her knowledge of that success. The commercial success can be direct or indirect. For example, if an applicant is a graphic artist, the letter could describe how their art work made money for someone else. Similarly, if someone worked as an Art Director for a television show and that show received critical acclaim and commercial success, this could be discussed.

Comparable Evidence

While USCIS regulations list evidentiary criteria to establish extraordinary ability, this list is not exclusive. Rather, the regulations provide that: “If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.” Investigation and exploration into a particular field of expertise is essential to identify this “comparable evidence.” For example, depending upon the particular field, “comparable evidence” may include prestigious fellowships, expertise with advanced technology, or a rare combination of skills. The key is determining how individuals within that field are judged and evaluated, and to portray the foreign national according to those standards.

Conclusion

The purpose of this article was to provide suggestions on how expert testimonials can be more effective in establishing extraordinary ability, as well as outstanding researcher and national interest waiver petitions. Traditional reference letters are usually written as one expert to another, not as one expert to a lay adjudicator. The suppositions inherent in such a letter limit its impact, as it may not be clear to the adjudicator what the beneficiary did and why anyone should care about it. Moreover, the more traditional reference letters are not written specifically to address the USCIS evidentiary criteria for extraordinary ability. Therefore, by arming potential referees with guidance on the purpose of their testimonials, their support letter can be the cornerstone to a winning case.

For more practical or legal advice on E-2 and other visas contact Scott Legal, P.C.. We offer services in a number of business areas including, Immigration, New Business set up, Contract review and development and entrepreneurial support. Call 212-223-2964 or email iscott@legalservicesincorporated.com for a consultation.

Ian E. Scott is a Harvard Law School Graduate, lawyer and author of Law School Lowdown: Secrets of Success from the Application Process to Landing Your First Job. Mr. Scott worked as a corporate litigator in the law firm Cleary Gottlieb and currently runs his own law firm Scott Legal, P.C. specializing in Immigration Law & New Business set-up.

 

 

Post a Comment

Your email address will not be published. Required fields are marked *

*