Most Common Misconceptions about the EB1A Visa - Silmi Law Firm


Most Common Misconceptions about the EB1A Visa
October 7, 2022

Most Common Misconceptions about the EB1A Visa

There are three classifications in the first category of employment-based immigration to the United States.

(1) EB1A, for individuals of extraordinary ability, is what this article will focus on.

(2) The second, EB1B, is for outstanding professors and researchers, you should note that this type of visa requires an employer’s sponsorship; and,

(3) EB1C, a classification for inter-company transferees, for example, a manager or an executive of a company with either a parent, affiliate, or subsidiary company in the US.

Addressing Misconceptions regarding the EB1A classification

We are going to discuss three of the most common misconceptions. The first one is whether one needs a Ph.D. degree to file for an EB1A visa or not, the second is whether you need to have an authorized published material to apply for an EB1A visa, and the third one is whether one needs to have a patent to apply for EB1A visa. The good news is none of these are required for an EB1A visa, and I will mention the reasons.

For the Ph.D. misconception, you will need to understand that there’s no education requirement for an EB1A visa. Unlike some other categories of visas, such as EB2, where there’s a general requirement for education, in eb1a, there’s no such requirement. Inevitably, most applicants have at least an undergraduate degree, but from a legal perspective, it’s not required. Unless you are a scholar or are engaging or endeavoring in some kind of scholarship, you may need a Ph.D., but that doesn’t mean you will surely be eligible for an EB1A based Green Card.

EB1A is a category of immigration for individuals who have risen to the highest level of their specific field of endeavor so that an individual may increase to this level without a Ph.D. For example, in the IT field, it’s rare to see someone doing advanced and innovative work related to AI, cyber security, or data science holding a Ph.D. degree.

The second misconception is whether you need to have an authorized publication. While having an authorized publication will be good evidence and help you get your EB1A approved, it is not required; you do not need to have publications to apply or qualify for Eb1a.

The third misconception is divided into two points:

  • number one, do I need to have patents to apply for Eb1a?
  • number two, if I have patents, does it mean that I qualify for Eb1a?

The answer to both of those questions is no. You do not need a patent to apply for EB1A, but if you have a patent, does that mean you will qualify for EB1A?

The patent demonstrates that you have an original contribution to the field of endeavor, but the test is not whether you have an original contribution; the test for this essential criterion is: whether the patent (i.e., the original contribution) is of significant significance to the field.

To determine whether your original contribution is significant, consider these four factors:

  1. Has the contribution had an impact on subsequent work in the field?
  2. Is there widespread discussion about the contribution?
  3. What is the (documented) economic, social, technological, or scientific impact of the contribution?
  4. Is there government interest/funding in the contribution?

Understand that while a patent is recognized as original contribution for it to count you need to prove its significance in light of the four factors listed above. One may also demonstrate the originality of their contribution without a patent!

Originality requires proof of concept, for example, it can be work product evidence that is attributed to the applicant or a definitive statement from an organization regarding the EB1A candidate’s involvement in the genesis of the contribution.

What does one really need to prove in order to be approved for an EB1A based Green Card?

It’s very important to know that there are three requirements to qualify for an EB1A based Green Card.

The first requirement, is that you have already sustained acclaim that is recognized within your field of endeavor. The second one is that you will prospectively benefit the United States based on being well positioned to provide future benefit to the U.S.

The third requirement, is that you will continue to work in your field of endeavor.

If you are questioning how to demonstrate sustained acclaim; the answer is that comes down to several criteria (you can find them on the USCIS website), but I should focus on an important point (I’ve mentioned previously) which is that nowhere in the legal requirements and Immigration laws will you find that the individual applying for an EB1A based Green Card must have a Ph.D.

I’m determined qualifying evidence for an EB1A petition look at your experience;

  • What roles have you performed in?
  • What contributions have you made?
  • What do you spend most of your time on?
  • What is the most important professional achievement you have made in your life thus far?

A uniquely tailored approach to EB1A highlights the important work that you have accomplished and what you’ve invested your time and energy into. That is where you need to look in gathering the building blocks of your EB1A based Green Card application.

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