In the previous post, I described the case Kazarian v. USCIS which changed the process of adjudicating EB1A petitions. As a result of the Kazarian’s case, the USCIS released a policy memorandum. This document established the rules for evaluation of the EB1A cases.
Today, I want to show you important details from this policy memorandum which serve to the USCIS officers evaluating EB1A petitions.
Note: text in italics is the citation from the official source. In this blog post, I pulled out the most interesting information from the USCIS Policy Memorandum (December 22, 2010).
The USCIS Policy Memorandum provides a guidance regarding the analysis that USCIS officers who adjudicate these petitions should use when evaluating evidence submitted in support of Form I-140 (Immigrant Petition for Alien Worker) filed for Aliens of Extraordinary Ability under section 203(b)(1)(A) of the Immigration and Nationality Act (INA).
Petition for an alien of extraordinary ability must be accompanied by initial evidence that the alien has achieved the requisite acclaim and recognition in the alien’s field of expertise.
USCIS agrees with the Kazarian court’s two-part adjudicative approach to evaluating evidence submitted in connection with petitions for aliens of extraordinary ability:
- Determine whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for each type of evidence listed at 8 CFR 204.5(h)(3); and
- 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 immigrant classification during a final merits determination.
Part One – Evaluating Whether Evidence Meets Regulatory Criteria
If a petitioner provides initial evidence (including but not limited to articles, publications, reference letters, expert testimony, support letters) that is probative (e.g., does not merely recite the regulations) and credible, USCIS officers should objectively evaluate such initial evidence under a preponderance of the evidence standard to determine whether or not it is acceptable.
If the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is “more likely than not” or “probably true,” the petitioner has satisfied the standard of proof. (“more likely than not” as a greater than 50% chance of an occurrence taking place).
In some cases, evidence relevant to one criterion may be relevant to other criteria set forth in 8 CFR 204.5(h)(3).
Let’s check the regulatory criteria one by one.
Prizes and Awards
Regulation 8 CFR 204.5(h)(3)(i):
USCIS officer should:
1. Determine if the alien was the recipient of prizes or awards.
The description of this type of evidence in the regulation provides that the focus should be on the alien’s receipt of the awards or prizes, as opposed to his or her employer’s receipt of the awards or prizes.
2. Determine whether the alien has received lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
Relevant considerations regarding whether the basis for granting the prizes or awards was excellence in the field include, but are not limited to:
- The criteria used to grant the awards or prizes;
- The national or international significance of the awards or prizes in the field; and
- The number of awardees or prize recipients as well as any limitations on competitors (an award limited to competitors from a single institution, for example, may have little national or international significance).
Membership In Associations
Regulation 8 CFR 204.5(h)(3)(ii):
USCIS officer should:
1. Determine if the association for which the alien claims membership requires that members have outstanding achievements in the field as judged by recognized experts in that field.
The petitioner must show that membership in the associations is based on the alien being judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought.
For example, admission to membership in the National Academy of Sciences as a Foreign Associate requires individuals to be nominated by an academy member, and membership is ultimately granted based upon recognition of the individual’s distinguished achievements in original research. See www.nasonline.org.
Associations may have multiple levels of membership. The level of membership afforded to the alien must show that in order to obtain that level of membership, the alien was judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought.
Relevant factors that may lead to a conclusion that the alien’s membership in the associations was not based on outstanding achievements in the field include, but are not limited to, instances where the alien’s membership was based:
- Solely on a level of education or years of experience in a particular field;
- On the payment of a fee or by subscribing to an association’s publications; or
- On a requirement, compulsory or otherwise, for employment in certain occupations, such as union membership or guild affiliation for actors.
Publication About Alien And His Work
Regulation 8 CFR 204.5(h)(3)(iii):
USCIS officer should:
1. Determine whether the published material was related to the alien and the alien’s specific work in the field for which classification is sought.
The published material should be about the alien relating to his or her work in the field, not just about his or her employer or another organization that he or she is associated with. Note that marketing materials created for the purpose of selling the alien’s products or promoting his or her services are not generally considered to be published material about the beneficiary.
2. Determine whether the publication qualifies as a professional publication or major trade publication or a major media publication.
Evidence of published material in professional or major trade publications or in other major media publications about the alien should establish that the circulation (on-line or in print) is high compared to other circulation statistics and show who the intended audience of the publication is, as well as the title, date and author of the material.
Judge of the Work of Others
Regulation 8 CFR 204.5(h)(3)(iv):
USCIS officer should:
Determine whether the alien has acted as the judge of the work of others in the same or an allied field of specialization.
The petitioner must show that the alien has not only been invited to judge the work of others, but also that the alien actually participated in the judging of the work of others in the same or allied field of specialization.
For example:
- Peer reviewing for a scholarly journal, as evidenced by a request from the journal to the alien to do the review, accompanied by proof that the review was actually completed.
- Serving as a member of a Ph.D. dissertation committee that makes the final judgment as to whether an individual candidate’s body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.
Original Contributions of Major Significance
Regulation 8 CFR 204.5(h)(3)(v):
USCIS officer should:
1. Determine whether the alien has made original contributions in the field.
2. Determine whether the alien’s original contributions are of major significance to the field.
USCIS officers must evaluate whether the original work constitutes major, significant contributions to the field. Although funded and published work may be “original“, this fact alone is not sufficient to establish that the work is of major significance.
For example, peer-reviewed presentations at academic symposia or peer-reviewed articles in scholarly journals that have provoked widespread commentary or received notice from others working in the field, or entries (particularly a goodly number) in a citation index which cite the alien’s work as authoritative in the field, may be probative of the significance of the alien’s contributions to the field of endeavor.
USCIS officers should take into account the probative analysis that experts in the field may provide in opinion letters regarding the significance of the alien’s contributions in order to assist in giving an assessment of the alien’s original contributions of major significance. That said, not all expert letters provide such analysis. Letters that specifically articulate how the alien’s contributions are of major significance to the field and its impact on subsequent work add value. Letters that lack specifics and simply use hyperbolic language do not add value, and are not considered to be probative evidence that may form the basis for meeting this criterion.
Alien’s Authorship
Regulation 8 CFR 204.5 (h)(3)(vi):
USCIS officer should:
1. Determine whether the alien has authored scholarly articles in the field.
As defined in the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college, university, or research institution. In general, it should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article.
For other fields, a scholarly article should be written for learned persons in that field. (“Learned” is defined as “having or demonstrating profound knowledge or scholarship”). Learned persons include all persons having profound knowledge of a field.
2. Determine whether the publication qualifies as a professional publication or major trade publication or a major media publication.
Evidence of published material in professional or major trade publications or in other major media publications should establish that the circulation (on-line or in print) is high compared to other circulation statistics and who the intended audience of the publication is.
Artistic Exhibitions Or Showcases
Regulation 8 CFR 204.5 (h)(3)(vii):
USCIS officer should:
1. Determine whether the work that was displayed is the alien’s work product.
The description of this type of evidence in the regulation provides that the work must be the alien’s.
2. Determine whether the venues (virtual or otherwise) where the alien’s work was displayed were artistic exhibitions or showcases.
Webster’s online dictionary defines:
Exhibition as a public showing.
(See: http://www.merriam-webster.com/dictionary/exhibition)
Showcase as a setting, occasion, or medium for exhibiting something or someone especially in an attractive or favorable aspect.
(See: http://www.merriam-webster.com/dictionary/showcase)
Leading Or Critical Role
Regulation 8 CFR 204.5 (h)(3)(viii):
USCIS officer should:
1. Determine whether the alien has performed in leading or critical roles for organizations or establishments.
In evaluating such evidence, USCIS officers must examine whether the role is (or was) leading or critical.
If a leading role, the evidence must establish that the alien is (or was) a leader. A title, with appropriate matching duties, can help to establish if a role is (or was), in fact, leading.
If a critical role, the evidence must establish that the alien has contributed in a way that is of significant importance to the outcome of the organization or establishment’s activities. A supporting role may be considered “critical” if the alien’s performance in the role is (or was) important in that way. It is not the title of the alien’s role, but rather the alien’s performance in the role that determines whether the role is (or was) critical.
This is one criterion where letters from individuals with personal knowledge of the significance of the alien’s leading or critical role can be particularly helpful to USCIS officers in making this determination as long as the letters contain detailed and probative information that specifically addresses how the alien’s role for the organization or establishment was leading or critical. Note: 8 CFR 204.5(g)(1) states that evidence of experience “shall” consist of letters from employers.
2. Determine whether the organization or establishment has a distinguished reputation.
USCIS officers should keep in mind that the relative size or longevity of an organization or establishment is not in and of itself a determining factor. Rather, the organization or establishment must be recognized as having a distinguished reputation. Webster’s online dictionary defines distinguished as
1: marked by eminence, distinction, or excellence – distinguished leadership and
2: befitting an eminent person – a distinguished setting.
(See http://www.merriam-webster.com/dictionary/distinguished)
High Salary
Regulation 8 CFR 204.5(h)(3)(ix):
USCIS officer should:
1. Determine whether the alien’s salary or remuneration is high relative to the compensation paid to others working in the field.
Evidence regarding whether the alien’s compensation is high relative to that of others working in the field may take many forms. If the petitioner is claiming to meet this criterion, then the burden is on the petitioner to provide appropriate evidence. Examples may include, but are not limited to, geographical or position-appropriate compensation surveys and organizational justifications to pay above the compensation data.
Three Web sites that may be helpful in evaluating the evidence provided by the petitioner are:
- The Bureau of Labor Statistics (BLS)
- The Department of Labor’s Career One Stop website
- The Department of Labor’s Office of Foreign Labor Certification Online Wage Library
Note: Aliens working in different countries should be evaluated based on the wage statistics or comparable evidence in that country, rather than by simply converting the salary to U.S. dollars and then viewing whether that salary would be considered high in the United States.
Commercial Successes in the Performing Arts
Regulation 8 CFR 204.5(h)(3)(x):
USCIS officer should:
Determine whether the alien has enjoyed commercial successes in the performing arts.
This criterion focuses on volume of sales and box office receipts as a measure of the alien’s commercial success in the performing arts. Therefore, the mere fact that an alien has recorded and released musical compilations or performed in theatrical, motion picture or television productions would be insufficient, in and of itself, to meet this criterion. The evidence must show that the volume of sales and box office receipts reflect the alien’s commercial success relative to others involved in similar pursuits in the performing arts.
Other Comparable Evidence
Regulation 8 CFR 204.5(h)(4):
USCIS officer should:
Determine if the evidence submitted is comparable to the evidence required in 8 CFR 204.5(h)(3).
This regulatory provision provides petitioners the opportunity to submit comparable evidence to establish the alien beneficiary’s eligibility, if it is determined that the standards described in 8 CFR 204.5(h)(3) do not readily apply to the alien’s occupation. When evaluating such “comparable” evidence, consider whether the 8 CFR 204.5(h)(3) criteria are readily applicable to the alien’s occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in that regulation.
General assertions that any of the ten objective criteria described in 8 CFR 204.5(h)(3) do not readily apply to the alien’s occupation are not probative and should be discounted. Similarly, claims that USCIS should accept witness letters as comparable evidence are not persuasive. The petitioner should explain why it has not submitted evidence that would satisfy at least three of the criteria set forth in 8 CFR 204.5(h)(3) as well as why the evidence it has submitted is “comparable” to that required under 8 CFR 204.5(h)(3).
On the other hand, the following are examples of where 8 CFR 204.5(h)(4) might apply.
- An alien beneficiary who is an Olympic coach whose athlete wins an Olympic medal while under the alien’s principal tutelage would likely constitute evidence comparable to that in 8 CFR 204.5(h)(3)(v).
- Election to a national all-star or Olympic team might serve as comparable evidence for evidence of memberships in 8 CFR 204.5(h)(3)(ii).
Note: There is no comparable evidence for the one-time achievement of a major, international recognized award.
Part One – Final Note
Objectively meeting the regulatory criteria in part one alone does not establish that the alien in fact meets the requirements for classification as an Alien of Extraordinary Ability under section 203(b)(1)(A) of the INA.
For example:
Participating in the judging of the work of others in the same or an allied field of specialization alone, regardless of the circumstances, should satisfy the regulatory criteria in part one. However, for the analysis in part two, the alien’s participation should be evaluated to determine whether it was indicative of the alien being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.
Publishing scholarly articles in professional or major trade publications or other major media alone, regardless of the caliber, should satisfy the regulatory criteria in part one. However, for the analysis in part two, the alien’s publications should be evaluated to determine whether they were indicative of the alien being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.
The issue related to whether the alien is one of that small percentage who have risen to the very top of the field of endeavor and enjoys sustained national or international acclaim should be addressed and articulated in part two of the analysis, not in part one where the USCIS officer is only required to determine if the evidence objectively meets the regulatory criteria.
Part Two – Final Merits Determination
Meeting the minimum requirement of providing required initial evidence does not, in itself, establish that the alien in fact meets the requirements for classification as an alien of extraordinary ability under section 203(b)(1)(A) of the INA.
As part of the final merits determination, the quality of the evidence also should be considered, such as whether the judging responsibilities were internal and whether the scholarly articles (if inherent to the occupation) are cited by others in the field.
In Part Two of the analysis in each case, USCIS officers should evaluate the evidence together when considering the petition in its entirety to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that the alien is one of that small percentage who has risen to the very top of the field of endeavor.
Sustained National or International Acclaim
In determining whether the beneficiary has enjoyed “sustained” national or international acclaim, bear in mind that such acclaim must be maintained. (According to Black’s Law Dictionary, 1585 (9th Ed, 2009), the definition of sustain is “(1) to support or maintain, especially over a long period of time; 6. To persist in making (an effort) over a long period of time.”) However, the word “sustained” does not imply an age limit on the beneficiary. A beneficiary may be very young in his or her career and still be able to show sustained acclaim.
There is also no definitive time frame on what constitutes “sustained.” If an alien was recognized for a particular achievement, the USCIS officer should determine whether the alien continues to maintain a comparable level of acclaim in the field of expertise since the alien was originally afforded that recognition. An alien may have achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim thereafter.
This policy memorandum guides the USCIS officers in adjudicating of the EB1A petitions. It also contains valuable information which should help you to understand how to build your own EB1A case.
If you have any questions or comments please submit them below this post.
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