CSC Analysis of Elements for EB-1 Extraordinary Ability
Posted May 18, 2001
In an analysis of the elements of the EB-1 extraordinary ability (EA) classification, the INS California Service Center (CSC) discussed issues that adjudicators should consider when assessing the quality of submitted evidence. This article provides an overview of the discussion.
To be eligible for EB-1 extraordinary ability classification, an individual must meet the statutory requirement of showing that s/he has a high level of expertise indicating that s/he is one of a small percentage who has risen to the top of her or his field of endeavor.
What is the Actual Field of Endeavor?
In determining whether a person is at the top of her/his field of endeavor, adjudicators must determine the actual field of endeavor. The example of extraordinary ability in business is given in the analysis. Adjudicators would have to determine if the field is all business executives, business executives in the particular field of business, etc. Determining the actual field allows adjudicators to consider the total population in the field. The top of the field may be a larger or smaller percentage depending on the size of the total population of the actual field.
What is being on top of the field?
Adjudicators then look at what constitutes being at the top of the field. In the sports field, for example, adjudicators would consider awards, such as being named most valuable player or successfully negotiating a very high salary. It is important to note that if an individual was previously at the top of a field but has been declining steadily, the person may not reach the level necessary for extraordinary ability.
How Can One Demonstrate National or International Acclaim?
Evidence of national or international acclaim and recognition may be shown by evidence of a one-time achievement or a major internationally recognized award, such as the Nobel Prize or evidence that satisfies at least three of the ten criteria provided in the regulations (more on the ten criteria below). In determining sustained national or international recognition, the CSC suggested that adjudicators use good judgment as a measuring stick. Winning the Nobel Prize is an obvious example of sustained recognition. A not-so-obvious example is that of an athlete who has been a major league player for six years and is now first string. According to the CSC, if the submitted awards are not familiar to people in the U.S., the petitioner and/or attorney must submit sufficient explanation and supporting documentation about the award to permit adjudicators to judge whether the award is a significant national award.
Does Satisfaction of 3 Criteria Require an EA Approval?
Please note that simply submitting evidence meeting three or more of the ten listed criteria does not mean that a petition will be automatically approved. The analysis indicates ways for adjudicators to approach the evidence, which may lead to a denial of the petition. The criteria are listed below, along with CSC's analysis of each criterion.
What are the 10 Criteria for EA?
1. Documentation of the beneficiary's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
The petitioner and/or attorney should submit testimony as to the nature and criteria for receipt of the award. Adjudicators are instructed to ask for the information if it is not provided with the original petition.
2. Documentation of the beneficiary's 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.
Whether the association requires outstanding achievements of its members may be determined by the organization's by-laws. If the by-laws or other sufficient information is not provided, a request may be made for such documentation.
3. Published material about the beneficiary in professional or major trade publications or other major media, relating to his/her work in the field for which classification is sought.
The analysis notes that the media reports on novel or unique works because they are perceived as different. Therefore, novelty and uniqueness do not necessarily equal extraordinary ability. Also, notoriety should not be confused with extraordinary ability. The published material must be about the foreign national's extraordinary ability. It is the petitioner's and/or attorney's responsibility to submit enough information to permit adjudicators to determine that the material about the foreign national is published in a publication that is considered a major trade publication.
4. Evidence of the beneficiary's participation, either individually or on a panel, as the judge of the work of others in the same or an allied field of specialization for which classification is sought.
The key here is whether the person judges the work of others who are professionals in the field of endeavor. Judging the work of trainees or students is not sufficient.
5. Evidence of the beneficiary's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.
It is not sufficient for the foreign national simply to contribute to the field. Adjudicators are to consider whether his/her work has led to changes in the field. They also consider whether the work has been used as a guideline or training tool by others in the field.
6. Evidence of the beneficiary's authorship of scholarly articles in the field, in professional or other major trade publications or other major media.
Evidence of this nature usually applies if the foreign national is in scientific fields. Being a primary author or one of the primary authors of a research paper is indicative evidence of extraordinary ability.
7. Evidence of the display of the beneficiary's work in the field at artistic exhibitions or showcase.
The analysis focuses on the arts when discussing this criterion. It indicates that adjudicators should consider the significance or quality of the exhibition or showcase.
8. Evidence that the beneficiary has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
Adjudicators are to consider what organizations the foreign national has worked for and the role s/he has filled in those organizations. However, it is not sufficient for an individual to have worked for distinguished organizations in any capacity. Her or his role must have been leading or critical. Both elements are crucial to determining extraordinary ability.
9. Evidence the beneficiary has commanded a high salary or other significantly high remuneration for services in relation to others in the field.
Since scientific and educational fields do not necessarily pay well, this criterion does not apply in many cases. This criterion is applied more commonly in the athletics and performing arts fields.
10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
This category takes into account an individual's ranking in the artistic field. Here, adjudicators may consider BILLBOARD and other charts, as well as evidence of gold or platinum records and box office ranking for movies.
How Can One Establish Future Benefit to the U.S.?
As this analysis shows, there are many factors to be considered when determining whether an individual has reached extraordinary ability caliber. It is important to note that an individual also must plan to continue working in his or her field of extraordinary ability. If an individual was an extraordinary athlete, he or she cannot enter the U.S. to be a coach of a team. There must be intent to continue working as an athlete. As the analysis states, since this classification does not require a job offer, this determination will be based largely on the petitioner's or attorney's assertions about future work in the field. © The Law Office of Sheela Murthy, P.C.
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