Case Studies: Extraordinary Ability EB-1(A)
Section 203(b)(1)(A) of the Immigration and Nationality Act (INA) states that: (1) aliens with extraordinary ability. An alien is described in this subparagraph if (i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation, (ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and (iii) the alien’s entry to the United States will substantially benefit prospectively the United States.
Federal regulation defines the term “extraordinary ability” as a level of expertise indicating that the individual in one of that small percentage who have risen to the very top of the field of endeavor. Administrative Appeals Office (AAO) consistently holds that a petitioner must show that he or she has sustained national or international acclaim at the very top level.
Alien’s receipt of a major international award for his or her achievement, such as Nobel Prize, is sufficient. While most people do not have such prestigious award, federal regulation sets a number of regulatory criteria. EB(1)(A) petition may be approved if alien meet three of ten listed criteria. Please pay attention to AAO’s position—submission of documentation relating to at least three of the various kinds of evidence listed is insufficient. In other words, USCIS or AAO takes a very restrictive approach to determine whether an alien sustained national or international acclaim on the very top of the field of endeavor, notwithstanding the specific regulatory criteria. Ironically, both USCIS and AAO use the regulatory criteria in adjudicating each petition.
We analyze several EB(1)(A) petitions on following regulatory criteria.
Receipt of Lesser Nationally or Internationally Recognized Prizes or Awards
An Indian petitioner received stipends through a junior research fellowship from the Indian Council of Scientific and Industrial Research (CSIR) while studying his Ph.D. program. CSIR fellowships are awarded to about 5 percent of students based on national test results. AAO did not think this kind of award meet “extraordinary ability” standard. First, academic study is not a field of endeavor, but training for a future field of endeavor. Therefore, academic scholarships, including stipends, and student awards cannot be considered prizes or awards in the petitioner’s field of endeavor. Second, competition for scholarships is limited to other students, and experienced experts in the field are not seeking scholarships.
Based on above AAO’s holding, alien’s award or prize during academic study is virtually not qualified for “extraordinary ability” purpose.
Membership in Associations which require Outstanding Achievements of their Members
An association requiring a degree in the field, a number of years of experience and nomination by current members to admit new member is common on numerous professional associations. AAO’s position is that obtaining a degree necessary for employment in the field and working in the field for a specific number of years are not outstanding achievements. Also, nomination from 2 members of an association does not make new member to have outstanding achievement. We agree with AAO’s reasoning since their arguments are very persuasive. Thus, if petitioner has similar membership in his or her immigrant petitions in “extraordinary ability”, “outstanding professor/researcher” or “national interest waiver”, this requirement is likely not satisfied.
Published Materials about the Alien in Professional or Major Trade Publications relating to the Alien’s Work
Typically, the petitioner will submit articles which cite his or her own work to meet this requirement. However, USCIS and AAO hold that citation of the work of others is expected and routine in the scientific community. Alien’s wok having cited in print simply does not establish him or her sustaining national or international acclaim. AAO stated that articles which cite petitioner’s work are primarily about the author’s own work, not the petitioner. “Citations simply do not meet the plain language of this criterion.”
Alien’s Participation, either Individually or on a Panel, as a Judge of the Work of other
One petitioner was requested to referee articles for 2 journals. AAO concluded that he did not meet this criterion. While we are not quite concurring with this conclusion, probably the primary reason for this denial is that the petitioner submitted invitations from 2 journals. One journal stated that “reviewing manuscripts is recognized as a professional obligation of scientists who themselves publish in the literature. Authors who repeatedly decline requests to review will be asked to submit their own manuscripts to other journals.”
The above statement will provide USCIS or AAO basis to believe that judging the work of others is not limited to research scientist of extraordinary achievement since a failure to perform this responsibility may hinder an ordinary researcher’s ability to have his or her own work published. If peer review is routine in the field, not every peer reviewer enjoys sustained national or international acclaim. However, reviewing an unusually large number of articles, independent requests from a substantial number of journals, or serving in an editorial position for a distinguished journal are strong evidence which USCIS and AAO clearly imply this criterion met.
We believe that USCIS and AAO may have less stringent standard in applying citation record to “national interest waiver” or “outstanding professor/researcher” than in “extraordinary ability”.
Original Scientific, Scholarly, Artistic, Athletic, or Business-related Contributions
References contained wordings, such as “gradually developed an experimental competence,” “could extend his activity to the important problems,” or “will eventually develop,” create denial ground for USCIS or AAO. “Predictions of future competence do not indicate or imply that the petitioner has already made a contribution of major significance to the field.” Therefore, it is very import for “extraordinary ability” petition to focus on his or her past accomplishments, not on potential, in reference letters to meet this requirement. By contrast, future potential will be useful to prove his or her prospective benefit to the United States.
Additionally, a patent listing petitioner as one of 13 or 19 inventors is not necessarily evidence of a track record of success with some degree of influence over the field as a whole. Particularly, if petitioner applied the patent during his or her study in Ph.D. thesis work, USCIS and AAO will have petitioner bear a heavy burden to set apart him or her from other most experienced members of the field. Significance of the innovation must be determined on a case-by-case basis.
Authorship of Scholarly Articles in the Field in Professional or Major Trade Publications or other Major Media
There was a petition with 6 published articled at the time of filing. AAO denied the petition by citing Report and Recommendations published by the Association of American Universities’ Committee on Postdoctoral Education. It defines that a postdoctoral appointment is viewed as preparatory for a full-time academic and/or research careers, and the appointee has the freedom, and is expected, to publish the results of his or her research or scholarship during the period of the appointment. Accordingly, publication of scholarly articles is not automatically evidence of sustained acclaim. Community’s reaction, such as citations, to those articles should be considered.
However, citations from coauthors will be discounted by USCIS. “While self-citation is a normal and expected practice, citations by coauthors cannot demonstrate that the petitioner’s work is influential beyond his collaborators.” The more citations by independent researchers are the better chance USCIS will take credit. AAO even decided that 5 independent citations of an article is not evidence that the article is widely cited.
From the above summarized analysis, we cannot emphasize enough the role of attorney in assisting and filing an immigrant petition, such as “national interest waiver,” “outstanding professor/researcher,” and “extraordinary ability.” Since those petitions are extremely complicated, different documentary evidence can be used as support on one legal requirement while same evidence provides no evidentiary effect on another criterion. Our advice for clients is to work hard in building your credentials and you will succeed in your career and in your immigration.
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