AAO Upholds Denial of Extraordinary Ability Case
Posted May 30, 2008
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The Administrative Appeals Office (AAO) released a decision upholding the denial of an EB1 (extraordinary ability) petition in which the employer failed to demonstrate that the sponsored foreign national had extraordinary ability in a particular field. (Please note that the extraordinary ability petition is exempt from job offer requirement and, therefore, can be self-sponsored by the foreign national. This case was filed by an employer on behalf of an employee, however.) The AAO found that the employer had failed to demonstrate that the beneficiary earned sustained national or international acclaim in order to be classified as an individual with extraordinary ability, as required under the law and regulations. Long-time readers of MurthyDotCom and the MurthyBulletin readers may recall a discussion of the high standard set in EB1 cases in our September 15, 2006 article, Can I Benefit under the 'Current' EB1 Priority Dates?.
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Very High Standard for EA as Emphasized by AAO
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The AAO rejected the claim that the beneficiary, who was employed as a 'Marketing and Cross-Selling Manager in the Corporate Banking North America unit' of a company, and who held the position of a corporate vice president, had demonstrated extraordinary ability. The AAO emphasized that the extraordinary ability category is limited to the very small percentage of individuals who reach the very top of their fields of endeavor. Petitioners must show sustained national or international acclaim at the very top level. Simply being extremely good within one's field, or holding a high level of expertise, is insufficient to meet the criteria. Potential applicants should remember that the term extraordinary ability has a specific legal meaning and criteria that must be met, and many people who might be termed extraordinary in the normal use of the word will not qualify under the strict legal use of the term.
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Requirements for EA/EB1
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Federal law mandates that an individual satisfy certain requirements in order to be eligible for the EB1 category. Beneficiaries who have been awarded a major internationally-recognized award may be eligible for EB1 classification. Federal law outlines ten criteria for EB1 eligibility. Beneficiaries must meet at least three of these criteria in lieu of a major internationally-recognized award. Readers may find the eligibility requirements for the EB1 extraordinary ability criteria in our MurthyDotCom article, Employment-Based, First Preference (EB1) or Priority Workers.
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Academic Degrees are not Prizes or Awards to Satisfy EA Standard
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One of the criterion from the ten listed is receipt of lesser nationally or internationally-recognized prizes or awards for excellence in the field of endeavor. The initial attorney in this case tried to categorize academic degrees within the prize or award category. The AAO disregarded this, stating that degrees are not prizes and that university study is not a field of endeavor. It is training for future employment in the field of endeavor.
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Published Materials Must Be Primarily about the Beneficiary
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Another of the ten criteria is published materials about the foreign national in professional and/or major trade publications or other major media relating to the foreign national's work in the field. For this category, any published material must be primarily about the beneficiary and be printed in professional or major trade publications or other major media with national or international distribution.
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The petitioner in this case submitted an employer internal newsletter, which did not qualify as an appropriate type of media. There were also copies of articles in major national or international media about the company and a merger, but did not mention the foreign national. The USCIS and the AAO both considered these insufficient for the individual to qualify under the EB1 category.
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Other Categories of Evidence
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The AAO parsed each piece of evidence, including claims of having served as a judge of the work of others and evidence of original business-related contributions of major significance to the field. The AAO essentially disregarded these claims, as the work was all a normal part of the foreign national's job and inherent in the position of Marketing and Cross-Selling Manager. The AAO indicated that being recognized for contributions within one's job does not demonstrate that the accomplishments have been recognized as advancing the field to a greater degree than others in similar pursuits. The same was true of claiming authorship of articles in the field by trying to utilize company business reports, action plans, policies and procedures. These were considered to be part of the foreign national's job and not publications in professional, major trade publications or other major media.
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Conclusion
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Sometimes, there is the belief on the part of the employer or employee that the beneficiary should be eligible for a particular category in order to obtain the green card more quickly. In these instances, the attorney must explain, as we often do at the Murthy Law Firm, that a candidate simply does not qualify for a particular category or, in other instances, that the candidate must wait a few years to qualify, if s/he is on the right track.
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This case demonstrates that it is not enough to qualify for EB1 by holding a high level job within a large organization, even if one plays a key role within that organization. Many people confuse expertise and general professional accomplishments with qualifications for the EB1 extraordinary ability category. A qualified individual must have made his or her mark on the field of expertise well beyond and outside of the employer or the workplace, as well as having obtained sustained national or international acclaim as the result of her/his work in the worldwide community. The extraordinary ability category is intended as a limited category, reserved only for those who are highly recognized experts in their fields.