Sandeep currently is a tech-lead in machine learning, in a reputed American company. He arrived in the US in 2016 for his masters’ degree and later went on to obtain a PhD from UCLA. When he joined the workstream, the layoffs in 2022 proved to be a final wake-up call for him. He began in earnest to work on his application for an EB-IA.
The moot point is that extraordinary ability has to be proved and this is easier said than done. At least three of the ten listed criteria need to be met. US Citizenship and Immigration Services (USCIS) has updated its guidance to further clarify the types of evidence that it may evaluate to determine eligibility. Before we dive into this, let us first look examine the basics of the EB-1 category of visas.
What are EB-1 category of visas?
The series of EB-1 visas are ‘First Preference’ permanent residency US visas (aka green cards). A green card enables the individual and his dependents (spouse and children) to stay permanently in the US, work and study. There exists three EB-1 visa types for individuals with a high level of achievement.
-EB-1A: Extraordinary ability green card
-EB-1B: Outstanding professor or researcher green card
-EB-1C: Managers or executives of multinational companies
EB-1A visa is available to foreign nationals who can demonstrate extraordinary ability in their field of science, arts, education, business, or sports. No offer of employment is required. As regards the EB-1B visa, which is available to professors or researchers – the applicants have to show evidence of international recognition for outstanding performance in their academic field, have a minimum of three years of experience in teaching or research in that same area, and have a US job offer to work in a teaching position or as a researcher. Under the EB-1 umbrella, the last green card category is EB-1C, which is for managers or executives of multinational companies, who meet the requisite conditions.
While there is a backlog even in the EB-1 category for Indian nationals, the figures are lower than those in the EB-2 (workers having advanced degrees or specialized knowledge) and EB-3 (skilled or professional workers) categories
| Green card category | Principal | Dependents | Total |
| EB-1 | 51,249 | 92,248 | 1,43,497 |
| EB-2 | 4,19,392 | 4,19,392 | 8,38,784 |
| EB-3 | 1,38,581 | 1,38,581 | 2,77,162 |
| Total | 6,09,222 | 6,50,221 | 12,59,443 |
| Source: National Foundation for American Policy – USCIS data as of Nov 2, 2023 | |||
Criteria for demonstrating extra ordinary ability:
US Citizenship and Immigration Services (USCIS) on its website states that in order to demonstrate that an applicant has sustained national or international acclaim, and these achievements have been recognized in the relevant field of expertise, the applicant must either include evidence of a one-time achievement (major internationally-recognized award) or 3 of the 10 listed criteria below (or comparable evidence if any of the criteria do not readily apply):
-Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
-Evidence of your membership in associations in the field which demand outstanding achievement of their members
-Evidence of published material about you in professional or major trade publications or other major media
-Evidence that you have been asked to judge the work of others, either individually or on a panel
-Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
-Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
-Evidence that your work has been displayed at artistic exhibitions or showcases
-Evidence of your performance of a leading or critical role in distinguished organizations
-Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
-Evidence of your commercial successes in the performing arts
Updated guidance issued by the USCIS:
Recently, an updated guidance has been issued, aimed at providing more clarity and transparency to assist applicants in submitting appropriate evidence that may establish eligibility/
-A person’s receipt of team awards will be considered under the criterion for lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor
-Past memberships will be considered under the membership criterion
-The agency explains that while the dictionary defines an ‘exhibition’ as a public showing not limited to art, the relevant regulation expressly modifies that term with ‘artistic’. However, USCIS will consider non-artistic exhibitions as part of a properly supported claim of comparable evidence.
Insights from immigration attorneys:
TOI spoke with several immigration attorneys to understand the ramifications of the updated guidance.
Team awards: Snehal Batra,managing attorney at NPZ Law Group states, “Nothing precludes the person from relying on a team award, provided the person is one of the recipients of the award. The description of this type of evidence in the regulation indicates that the focus should be on the person’s receipt of the awards or prizes, as opposed to the employer’s receipt of the awards or prizes.”
Adds, Tess Douglas, managing attorney at DGO Legal, “USCIS clarified that awards to a team can qualify. But at the same time, the guidance still says that the applicant must be named in the award. So, if a company receives an award for a project that the applicant worked on, it still will not be enough unless the applicant is named as a recipient of the award.”
Batra explains that in general, qualifying awards include team awards where each member receives a trophy, certification, or medal; appears on the podium or stage; or is specifically named in the awarding organization’s announcement of the award selection. Examples include members of a musical group who receive an award and relay team members who appear together on the medal podium.
Jonathan Wasden, immigration attorney, states “My primary concern is the agency’s description of group awards being a ‘lesser’ form of evidence. There are few, if any, major advances that were accomplished by someone working in solitude. These things are almost always group endeavors. In my mind this creates a scenario where a team member on a discovery that fundamentally alters the field would be less valuable in the agency’s eyes than someone doing relatively minor work by themselves. Over all, I wish they would provide more regulation on this visa category. Until they do it will always be a guessing game for immigration practitioners and applicants.”
Past membership in exclusive associations: USCIS clarifies that past membership in associations (in the applicant’s field), which demand outstanding achievement of their members will be accepted.
Douglas states, “Even though this may technically mean you don’t have to currently be a member, I think it would be hard to ultimately persuade USCIS that you are still a leader in your field but you are no longer a member. Maybe this would work in the sports or entertainment industry, but probably not in other industries like business or software engineering.”
Batra agrees. She says, “If the application is not accompanied by any recent evidence, the length of time since membership ceased to exist, could be a consideration for determining whether the applicant has sustained acclaim in the final merits determination, by USCIS.”
Relaxation regarding publications: As regards this update, Douglas explains that USCIS has clarified that publications don’t have to demonstrate the value of the work to qualify. Although this might help the applicant to qualify under this criterion, he or she will probably face challenges at the final merits stage if it cannot be shown that the publications had value on the field as a whole.
Display of work at artistic exhibitions: “USCIS explicitly requires that the exhibitions or showcases be artistic in nature and only considers non-artistic exhibitions or showcases as part of a properly supported claim of comparable evidence,” points out Batra. Douglas adds, “USCIS clarified that this criterion doesn’t just apply to art exhibitions. So, applicants can get creative here and include work that is publicly facing in this criterion.”
Success story – the Dos and Dont’s:
While Sandeep Singh Sandha successfully got his green card much before the updated guidance from USCIS, he shared his dos and don’ts for the benefit of TOI’s readers.
The Dos:
Start early: It takes time to compile all the required documents. Begin gathering your documentation as early as possible to compile all the necessary evidence of your achievements and impact. You may have to reach out to your peers for some evidence.
Be thorough: Ensure that the evidence you provide for each criterion is solid and well-documented. Highlight your contributions, including publications, citations, awards, and leadership roles. My suggestion for researchers is to stay active because it may at least take a few years to build a solid profile.
Consult experts and connect with your network: While self-petitioning is possible, it is critical to seek advice from experienced professionals who can review your profile and guide you through the process. In addition, seek feedback and support from mentors, senior colleagues, and others who have gone through the process to refine your application.
Tailor your application: Each application is unique, so make sure your profile connects clearly to the specific criteria and presents a clear narrative of your contributions to your field.
Selecting recommenders: Select recommenders who are recognized authorities in your area of expertise. Even if they haven’t directly worked with you, their understanding of your contributions and their established reputation can lend credibility to your application
The Don’ts:
Don’t rush the process: EB-1 applications require careful preparation. Rushing through it often results in more delays and requests for evidence later. Further, this strategy may lead to denials as well.
Make sound claims: Be realistic about your achievements. Exaggerations or weak claims can lead to rejections or requests for additional evidence. Claims should be supported well by the presented evidence.
Don’t ignore rejections: If your initial application is denied or requires additional evidence, don’t lose hope. Address the gaps, rework the application, and try again.
Highlight the impact of your work: It’s not enough to list your achievements. You must demonstrate how your work has impacted your field or industry.
Key takeaways and conclusion:
Wasden states that EB-1 cases, say for instance EB-1A, the applicants by definition are those who are at the top of their fields in evolving technologies. However, the people deciding on their qualifications are bureaucrats with absolutely no experience in that field. This creates its own set of challenges.
Batra says, “These new updates do appear to broaden the eligibility criteria, however, only time will tell if USCIS will in fact consider this evidence under the preponderance of the evidence standard. In 2024, we’ve seen an increased trend in Requests for Evidence (RFEs) across EB-1. These problematic adjudications have resulted in significant burdens, including unnecessary litigation, and financial and emotional strain for the foreign nationals and employers. It is best to provide more than the minimum required criteria to substantiate extraordinary abilities.”
Douglas sums up by stating, “My key takeaway is that EB-1 remains difficult and these clarifications aren’t going to make it any easier. At best, you will have some additional policy manual language to cite to in a RFE or ‘Notice of Intent to Deny’ (NOID) response.
But, as Sandeep Singh Sandha states – If rejected, don’t lose heart. Address the gaps and reapply.