Author: silmilawastage

On October 2, 2024, the U.S. Citizenship and Immigration Services (USCIS) released new policy guidance on the types of evidence considered for EB-1A (Extraordinary Ability) petitions. This update is particularly relevant for applicants seeking to demonstrate sustained acclaim in their field, as it clarifies several aspects of evidence evaluation. Here’s what you need to know about these changes and how they impact EB-1A petitions.

Key Clarifications in the October 2024 Update

1. Recognition of Team Awards
The updated guidance confirms that team awards can now be recognized under the “lesser nationally or internationally recognized prizes” criterion. This is significant for individuals who have contributed to group achievements, such as scientific research teams, collaborative art projects, or sports teams. Previously, the focus was more on individual accolades, but this update acknowledges the importance of contributions to group accomplishments.
2. Consideration of Past Memberships
USCIS will now consider past memberships under the membership criterion. This allows applicants to demonstrate that their accomplishments have been recognized by prestigious organizations over time. This change provides more flexibility for individuals who may have had periods of active involvement in distinguished associations, further supporting their qualifications for the EB-1A classification.
3. Published Material Requirements Updated
The October 2024 guidance has removed the requirement that published material must explicitly demonstrate the value of the individual’s work. Previously, petitioners had to show how articles or media coverage validated their contributions. With this change, published materials that primarily feature the individual and their achievements can qualify, without the need to directly assess the impact of their work.
4. Restrictions on What Constitutes an “Exhibition”
The new policy clarifies that only artistic exhibitions will be considered under the “display of the alien’s work” criterion unless comparable evidence is adequately provided. This restriction ensures that only genuine artistic showcases contribute to an applicant’s EB-1A petition, making it clearer for artists on how to qualify under this criterion. Non-artistic exhibitions will need to be supported by strong comparable evidence to be considered.
Implications for EB-1A Petitioners
These updates provide more options for demonstrating extraordinary ability, particularly in fields where traditional individual accolades may not be the norm. However, they also emphasize the need for detailed and credible evidence to support claims. Petitioners should take these changes into account when preparing their EB-1A applications to ensure they meet the updated standards.
By acknowledging team achievements, recognizing the value of past memberships, and refining the types of exhibitions considered, USCIS is providing a more nuanced framework for evaluating extraordinary ability. This update is part of a broader effort to clarify and streamline the adjudication process for high-skilled individuals seeking permanent residence in the U.S.
For the official announcement and more details on the policy changes, visit the USCIS Policy Update.
Conclusion
The October 2, 2024, update to the EB-1A policy manual represents a significant shift in how USCIS evaluates extraordinary ability petitions. By allowing the consideration of team awards, past memberships, and various types of published materials, USCIS is expanding the types of evidence that applicants can use to demonstrate their qualifications. Applicants should leverage these changes to provide a comprehensive view of their achievements while ensuring that their documentation meets the newly clarified standards.

When applying for an EB1A visa, one of the key criteria to focus upon in support of your application is demonstrating that you command a “high salary or other significantly high remuneration in relation to your peers” in your field. However, understanding what USCIS considers a high salary can be complex. 

The term “high salary” in the context of an EB1A visa isn’t defined by a specific dollar amount. Instead, USCIS looks at how your salary compares to others in your field. To satisfy this criterion, your salary ought to be higher than the top 10%—or the 90th percentile—of earners in your profession. This means your compensation should be significantly higher than the majority of professionals in similar roles, indicating that your skills and contributions are recognized as elite and are thus exceptionally valued.

This comparative approach is crucial because it highlights that the high salary criterion is about your relative standing within your field, rather than just hitting a particular income threshold. Your salary must stand out as exceptional when compared to industry standards, reflecting your extraordinary ability.

A crucial step in proving that you command a high salary is selecting the appropriate job title for your EB1A petition. Many applicants mistakenly believe that their job title must match their previous titles from H1B, EB2, or EB3 petitions. However, for EB1A, your job title should accurately reflect your  role and responsibilities tied to your EB1A field of endeavor, even if it differs from previous titles and it can even be a prospective or future role.

Choosing the right job title can be challenging, especially as the Department of Labor’s Bureau of Labor Statistics (BLS) does not list all possible titles. In such cases, you must select the closest match based on your job description and industry standards. This selection is crucial because your salary will be compared to others holding the same or similar titles. If your job title does not accurately represent your role, it can skew the comparison and affect the evaluation of your salary.

For instance, if your role as a Computer and Information Systems Manager involves a broad range of responsibilities, you need to ensure that the title you choose for your EB1A petition reflects this scope. Once you’ve identified the correct title, you can compare your salary against BLS data. If the high salary for your role is $214,050, and you earn $300,000, you have clearly exceeded the 90th percentile or higher, thus meeting the high salary criterion.

To substantiate your high salary claim, you must provide credible documentation. The most reliable document is typically your W-2 form, which outlines your total annual earnings. However, if your W-2 doesn’t fully capture your salary—perhaps due to recent changes in your compensation—an employment verification letter can be an effective supplement. Also, recent updates to adjudication procedures has opened the door for offer letters to be used as evidence that one commands a high salary.

Essentially, a high salary serves as tangible proof of your exceptional ability. If you are earning significantly more than 90% of your peers, it’s a clear indication that your expertise is highly sought after and valued. This not only supports your case but can also help differentiate your application from others who may not have such compelling evidence and serve your needs in establishing that you have reached the very highest level of your field from a final merits determination perspective.

It’s essential to approach this criterion thoughtfully. Missteps in selecting an appropriate job title or failing to provide comprehensive documentation can result in a Request for Evidence (RFE) or even denial of your petition. Ensuring that your salary is properly documented and clearly compared to industry standards strengthens your application and increases your chances of success.

A lot of clients ask, “Can I file for an EB-1A visa if I only meet three criteria?” This is a common question, especially among those who meet the criteria of original contributions of major significance, a high salary, and leading or critical roles within their organizations. The short answer is yes—you can file for EB-1A if you meet at least three out of the ten criteria. This is a positive sign, particularly if those three criteria include critical and leading roles. However, there’s more to consider beyond just meeting the minimum requirements.

While meeting three criteria makes you eligible to apply, it doesn’t necessarily mean your case is strong enough to be approved without complications. In many cases, applicants who only meet three criteria might end up receiving a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). An RFE can delay your process and create additional hurdles, as it signals that the reviewing officer requires more convincing evidence to establish that you possess extraordinary ability. An NOID can put your back to the wall in formulating a response because you are provided only 30 days to respond to USCIS. 

One of the most important needs that exists in a successful claim for EB1A is to demonstrate to USCIS that your achievement has transcended your employer such that you are recognized beyond your circle of professional acquaintances. To improve your chances of a successful EB-1A petition, it’s essential to build and strengthen your profile beyond just the minimum three criteria. This could involve enhancing your documentation, gaining recognition in additional areas, or ensuring that your existing accomplishments are presented in the strongest possible light.

What If You Meet Four Criteria?

Now, let’s consider the situation where you meet four criteria, perhaps adding criteria such as judging the work of others or holding membership in an association that requires outstanding achievements. While this certainly strengthens your case, it doesn’t guarantee approval. The reviewing officer may still be meticulous, and if they’re not fully convinced of your extraordinary ability, an RFE might still be issued.

Meeting three or even four criteria is a significant accomplishment and puts you on the right path for an EB-1A visa. However, simply meeting the minimum number of criteria is often not enough to ensure a smooth approval process as ultimately cases are subjected to a final merits determination. This process involves a comprehensive assessment of the quality, consistency, and impact of the evidence provided. To maximize your chances of success, it’s crucial to thoroughly prepare your application, strengthen your profile, and anticipate potential challenges like an RFE. By doing so, you’ll be better positioned to demonstrate the extraordinary ability required for the EB-1A visa.

A team award is a recognition given to a group of individuals who have collectively accomplished a significant contribution or demonstrated excellence in a particular field or project. Unlike individual awards, which highlight the personal achievements of an individual, team awards recognize the collaborative efforts, and success of a team working together towards a shared goal. 

While team awards are valuable in acknowledging group efforts and achievements, they present a challenge when it comes to meeting specific criteria set by USCIS. USCIS’s two-step test for evaluating nationally or internationally recognized awards under the EB1A (Extraordinary Ability) category emphasizes individual recognition, which team awards inherently lack. Under this test:

First, USCIS looks at whether the individual personally received prizes or awards. This part considers the individual receiving the award, as opposed to the team or employer. Since team awards are given to the collective effort of a team, not an individual, they fail this requirement. 

Furthermore, since the team award does not satisfy the requirement of the first part, it is disqualified from further consideration under the EB1-A category. 

While it is true that the USCIS generally considers team awards to be less valuable than individual awards, they can still hold significant merit for the EB1A petition. Team awards can be particularly helpful in the following scenarios:

1. Team Award within Critical or Leading Role Criterion for Organization and Establishment 

Even though team awards may not be directly considered under the individual award category, they can be instrumental in meeting the critical role criterion for EB1A. The critical role criterion assesses the applicant’s critical or leading role in the success and outcome of an organization or establishment. Here, team awards can serve as documentary evidence of the applicant’s critical involvement and leadership within a successful team effort.

To effectively leverage the individual’s team awards under critical or leading role, applicants should clearly outline their leadership positions, unique skills, or innovative ideas that contributed to the team’s success. They should also support these claims with letters from team members, supervisors, or industry experts attesting to their unique contributions. Additionally, it is important to convey the significance of the team award by providing context about the competition, the standard of review and selection, and the prestige associated with the award. Finally, it is important to note that there might be an overlap between individual’s “leading or critical roles” and their “original contributions of major significance” in many scenarios. For instance, if you have been part of a team that received an award, this could be relevant to both criteria. In such cases, it is essential to clearly articulate your individual contributions and how they were pivotal to the team’s success. Highlighting your unique role and the impact of your work will strengthen the case for your EB1A application.

2. Team award within Final Merit Determination

Additionally, team awards can be elaborated under the final merit determination phase of the EB1A. In the final merit determination,  USCIS reviews the totality of the evidence to determine if the applicant is among the top in their field. Officers cannot restrict the types of evidence or deny a petition simply because a specific type is missing, as long as other qualifying evidence is provided. For instance, an officer may believe that an extraordinary individual should have a national or international award to be recognized as an extraordinary individual; however, the petition cannot be denied solely because such an award is not submitted, as long as other evidence meets the three qualifying criteria demonstrating the person’s extraordinary ability. 

Additionally, during the final merit determination, officers may evaluate any relevant and comparable evidence, even if it does not fall under specified regulatory criteria. This means that all submitted evidence is assessed collectively to determine the applicant’s extraordinary ability. For example, a team award, which might not fall under the national and international awards criterion, can still be considered as part of the final merit determination. The officers can take into account the significance of the team award, and how this evidence collectively supports the applicant’s claim of being at the top of their field. This flexible approach ensures that every piece of evidence is thoroughly evaluated in the final merit determination.

By Sima Majnooni

The L-1 Intra-Company Transferee visa is a non-immigrant work visa. It allows qualifying foreign employees of multinational companies to be temporarily transferred to a parent, subsidiary, affiliate, or branch of the same company in the U.S.

There are two main categories under the L-1 visa:

1. L-1A Visa for managerial or executive roles within the organization.

2. L-1B Visa for employees with specialized knowledge about the company’s products, and procedures. 

Each category has specific eligibility criteria and benefits, catering to different professional roles within a company.

It is important to understand the visa duration under L-1 if you are considering transitioning to permanent residency. For L-1A visa holders, the maximum stay allowed is seven years, while those with an L-1B visa can stay for up to five years. Initially, both visas are granted for three years, but extensions of two years for each are possible.  When your L-1 visa reaches its maximum limit, you may indeed be concerned about your options. In such a situation, you have several avenues to explore:

1. If you’re currently on an L-1A visa, you are indeed in an advantageous position when it comes to applying for a green card. The EB-1C immigrant visa category is an excellent pathway that mirrors the L-1A non-immigrant visa. Both visas are designed for individuals in managerial roles, making the transition from L-1A to EB-1C a seamless option. However, there is a catch—you’ll need sponsorship from your employer.

2. What if you have an L-1B visa? The duration for this visa is even shorter than that of the L-1A, with a maximum stay of 5 years. Unlike the L-1A, which is designed for managerial roles, the L-1B focuses on employees with specialized knowledge of the company’s products and procedures. Changing from an L-1B to an EB-1C visa is complicated as the person with specialized knowledge under L-1B might not be suddenly reclassified to fit the criteria of the EB-1C category, which requires the individual to have worked as a manager or executive abroad and to be employed in a similar capacity within the U.S. company. While an L-1B visa is a dual intent non-immigrant visa, transitioning to EB-1C might not be straightforward. The United States Citizenship and Immigration Services (USCIS) may reject your EB-1C application if your original entry into the U.S. was based on L-1B specialized knowledge and you seek the transition to managerial or executive roles under EB-1C.

However, if your initial L-1B petition demonstrates a combination of specialized knowledge and managerial duties, and if you meet other EB-1C requirements, then pursuing the EB-1C category might indeed be a viable option for you.

3. A strategic approach worth considering is self-petitioning through avenues such as the EB-2, National Interest Waiver (NIW), or the EB-1A category. These pathways offer increased flexibility as they do not require employer sponsorship. Individuals with extraordinary abilities or those whose work significantly contributes to the national interest of the United States stand a better chance of transitioning to the EB-1A, and EB-2 NIW category.

4. Alternatively, you might switch from an L-1B to an L-1A visa, granting you an additional two years of stay if you meet the eligibility requirements.

5. If none of these options are applicable to you, another avenue to explore is transitioning to an H-1B visa. However, it is essential to note that the H-1B visa operates on a lottery-based system, which means there’s no guarantee of selection.

6. As a last resort solution, you may consider recapturing previously unused time from prior visa statuses. This approach can prolong your current stay and open up additional opportunities to change your status, spanning from weeks to months.

Navigating the immigration process can be complex, but with the right knowledge and strategies, you can find the best pathway to secure your green card. Whether through employer-sponsored categories like EB-1C or self-petitioning options like EB-1A and NIW, understanding your options is key to making informed decisions. Once your L-1 visa limit is reached and you want to continue living and working in the U.S., you can either file for a change of status to switch to another nonimmigrant visa like the H-1B visa, or file to adjust status to the permanent resident through EB-1C.

This article does not replace personalized legal advice. 

For individuals seeking an EB-1A visa based on extraordinary ability in the business realm, letters of support become an essential part of their petition. These letters, whether from recognized experts in your field or professionals who are not personally acquainted with you, play a pivotal role in substantiating the extraordinary nature of your achievements. 

When it comes to business-related EB-1A petitions, disregarding the importance of these letters can prove to be a costly oversight. In fact, overlooking their significance can risk the entire EB-1A application process. These letters are not just supplementary; they are a necessity in showcasing your extraordinary ability and achievements in the business realm.

Let’s dive into some of the most important letters. Remember that each type of letter plays a distinct role in strengthening the EB-1A petition. Let’s delve deeper into the distinct roles these letters play.

Originality Letters

When demonstrating your original business-related contributions to the USCIS adjudicator, it’s essential to provide evidence that substantiates your original role in bringing forth a specific product, project, or outcome. One effective way to establish this originality is by presenting what we refer to as “Testimonial Letters.” These letters go beyond standard references; they serve as unambiguous endorsements of you having responsibility for the specific contributions and responsibilities within the company. Usually composed by someone within your vertical, ideally a high-ranking executive who has personal knowledge of your work, this kind of letter will outline your contributions and affirm the details of your role in the cited accomplishments.

Reputation and Credibility Letters

When showcasing the significance of your business-related contributions, it’s valuable to include reputation and credibility letters. These documents spotlight the wider impact of your work.

Reputation letters illustrate how your contributions have reverberated throughout your professional community, demonstrating the broader significance of your work on peers and similar organizations, or how its adoption has been beneficial to them. These letters are from individuals who have not directly collaborated with you but are familiar with the reputation your work holds. The goal of the reputation letter is to highlight how your work has influenced peer organizations, been adopted by them, and had a broader impact on the field. For example, it might show that your innovative approach was implemented by other companies, leading to industry-wide changes and setting new standards.

Credibility letters are endorsements from external esteemed professionals in your field or similar areas who attest to the quality and importance of your work. By providing third-party validation, credibility letters add weight to the significance and effectiveness of your contributions.

Both credibility and reputation letters serve to highlight the broad influence and scope of your work, offering valuable insights into its impact and reach.

Overarching Critical or Leading Role Letter

To establish your critical or leading role within a distinguished organization, you must demonstrate how your contributions have significantly impacted the organization’s outcomes. Your role must surpass routine responsibilities and have a tangible effect on the organization’s overall results. Merely listing daily tasks will not suffice unless they show substantial influence. 

Similarly, a leading role is indicated by your title, position within the organizational hierarchy, and the scope of your responsibilities, typically involving high-ranking positions such as CFO, Head of Engineering, or Program Manager. USCIS assesses both the title and associated job duties to confirm the leadership status, which may include overseeing organizations, managing functions within departments, and supervising personnel.

The overarching critical or leading role letters must detail your contributions and their impact on the organization’s outcome. 

Ultimately, USCIS will look at the specifics within the content of these letters, as they serve as pivotal evidence in helping to satisfy the specific regulatory requirements of the EB-1A visa. The quality and credibility of these letters are paramount in the eyes of the USCIS adjudicator, particularly in assessing the applicant’s extraordinary ability. In the realm of technology and business, where success is gauged by impact, growth, and innovation, letters from esteemed industry figures corroborated by existing documented evidence in the record can be a game-changer for your EB1A case.

By Sima Majnooni with contributions from Sharif Silmi

In the realm of EB-1A visas tailored for individuals with extraordinary abilities for BUSINESS related contributors, the importance of performing a critical or leading role within an organization cannot be overstated. You might be curious about what exactly qualifies as a critical or leading role within a distinguished organization. Well, the assessment involves a two-pronged approach: (1) the individual MUST hold either a Critical Role or a Leading Role, or both;  (2) within a Distinguished Organization.

Critical Role

A critical role is the individual’s contribution to an organization that is deemed to have a significant impact on the organization’s outcomes, goals, or overall success. When USCIS officers assess whether a person has a critical role, they look for evidence that shows the person’s contributions are vital and have substantial influence on the organization’s activities. In fact, If the person’s work directly affects the organization’s core activities or key outcomes, it is considered a “critical role”.

It is crucial to understand that USCIS does not place a great emphasis on an individual’s daily tasks or routine responsibilities within an organization unless they demonstrate a significant impact on the organization’s overall outcomes or strategic direction. The USCIS officer looks for contributions that go beyond routine responsibilities, ones that have a tangible impact on the organization’s overall outcome. 

Leading Role 

The leadership role can be demonstrated by your title, hierarchy within the organizational structure, and the scope of your responsibilities. Typically, a leading role occupies a high-ranking position like Chief Financial Officer (CFO) in the overarching organization, Head of Engineering within a specific division, or even Program Manager for a subdivision. USCIS assesses both the title of the role and the associated job duties to confirm its leadership status. You may oversee organizations, manage a function within departments, and supervise other personnel. 

Distinguished Organization

Finally, when it comes to the credibility of an organization, USCIS considers the general and specific reputation of the organization. 

General Reputation of an Organization 

The general reputation of an organization reflects the overall standing or perception in the public eye, typically including brand recognition, trustworthiness, and perceived reliability across various stakeholders.

Specific Reputation of an Organization 

In contrast, specific reputation pertains to how the organization is viewed within your particular field, area, or domain. This could include its reputation for a specific product, initiative, or innovation, among other specific attributes.

To support your critical or leading role, you can include letters from trustworthy and distinguished individuals within the organization who can provide detailed and persuasive insights about your contributions and clearly illustrate how your efforts have driven substantial progress and success within the company.

By Sharif Silmi, Sima Majnooni

Navigating the complexities of the EB1A petition process requires a strategic approach and an in-depth understanding of the criteria involved. One of the most critical elements in this process is articulating the “field for which classification is sought.” This aspect is not just a formality; it is the cornerstone of your entire petition, shaping how your achievements and contributions are perceived.

Defining the Field with Precision

The field for which classification is sought must be clearly defined, and it should reflect the petitioner’s area of extraordinary ability. This definition is crucial because it frames all subsequent arguments and evidence presented in the petition. A well-defined field allows for a cohesive narrative that demonstrates the petitioner’s sustained national or international acclaim.

When defining the field, specificity is key. For instance, instead of broadly stating “engineering,” a more precise definition might be “renewable energy engineering with a focus on solar power technology.” This level of detail ensures that the petitioner’s achievements are contextualized within a specific, recognizable area of expertise.

Once the field is defined, the next step is to align the petitioner’s achievements with this field. This involves showcasing how the petitioner’s contributions have significantly impacted the area of expertise. The petitioner must provide evidence of sustained acclaim, such as contributions of major significance, performing in a critical role, commanding a high salary in relation to one’s peers in the field, reviewing and judging the work of others, and membership in a professional organization based upon outstanding achievements judged by national or international experts.

The Role of Testimonial Letters

Testimonial letters play a vital role in strengthening the argument for extraordinary ability. These letters should come from experts who can speak authoritatively about the petitioner’s impact on the defined field. The letters must be detailed, providing specific examples of the petitioner’s contributions and their significance within the field.

In the context of “high voltage transformer technology,” a testimonial letter might describe the petitioner’s innovative design improvements that have enhanced energy efficiency and reliability in power distribution systems. Such detailed endorsements from industry participants and recognized experts provide compelling evidence of the petitioner’s extraordinary ability.

The field for which classification is sought is more than a mere label; it is the foundation upon which a successful EB1A petition is built. By precisely defining the field, aligning achievements with this field, leveraging testimonial letters, and meticulously addressing the USCIS criteria as an avenue to demonstrate one is among the highest percentage of their specific field, petitioners can present a compelling case for their extraordinary ability. This strategic approach not only enhances the coherence of the petition but also significantly increases the likelihood of a favorable outcome.

Sharif Silmi
Managing Attorney, Silmi Law