“As a married, self-employed serial entrepreneur from the Dominican Republic, the well-trodden paths of gaining a green card to work in the US, like marrying an American, investing more than $500K to $1M, or finding a corporate sponsor and waiting years to be accepted for the H-1B were not for me. However, what I was lacking in funds, patience, a sponsor and marriage availability, I made up in industry expertise.”
The employment-based first preference immigrant visa category (EB-1A), colloquially known as the “genius green card” or “Einstein visa,” provides a path to a green card for foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics. For immigrants who do not qualify for other immigrant visas or who face long backlogs in other categories, EB-1A may be the only viable option to obtain a green card.
Proving extraordinary ability has always been hard. Recently it has become even harder. Approval rates for EB-1A declined from eighty-two percent in 2016 to fifty-six percent in 2019. Immigration attorneys contend that U.S. Citizenship and Immigration Services (USCIS) adjudicators are interpreting the EB-1A regulations more narrowly than before.
The chances of winning an administrative appeal are even slimmer. We reviewed thirty-nine recent EB-1A decisions decided by the USCIS Administrative Appeals Office (AAO). Of the thirty AAO EB-1A decisions decided between November 2019 and November 2020, twenty-eight were denied. Of the nine EB-1A decisions decided since January 2021, seven were denied.
This article examines each of the EB-1A regulatory criteria in terms of how those AAO decisions analyzed them and suggests practice tips for attorneys preparing EB-1A green card applications. The AAO decisions we reviewed focus mostly on scientists and researchers, as athletes and artists tend to have a relatively higher chance of winning at the AAO.
Because the EB-1A immigrant visa category allows foreign nationals to self-petition, they do not have to have a prospective employer or a specific job offer. EB-1A can also save applicants a lot of time by foregoing the normal labor certification process. As of April 2021, the EB-1A category is also current for all countries, whereas other employment-based green card categories have long backlogs for citizens of certain countries, especially individuals from China and India.
To qualify for EB-1A, foreign nationals must provide evidence of “extraordinary ability” in the sciences, arts, education, business, or athletics. Although the O-1 nonimmigrant visa category also requires “extraordinary ability,” an O-1 approval does not guarantee later EB-1A approval. A foreign national can show extraordinary ability if they received a one-time major international prize such as a Nobel prize or an Academy award. But as these awards are not very common, most applicants demonstrate extraordinary ability by submitting qualifying documentary evidence of at least three out of the following ten criteria:
- Receipt of a lesser nationally or internationally recognized prizes or awards;
- Membership in associations in the foreign national’s field of expertise that require outstanding achievements of their members;
- Published material about the foreign national in professional or major trade publications or other major media;
- Participation, either individually or on a panel, as a judge of the work of others in the foreign national’s field;
- Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the foreign national’s field;
- Authorship of scholarly articles in the foreign national’s field, in professional or major trade publications or other major media;
- Display of the foreign national’s work at artistic exhibitions or showcases;
- A leading or critical role for organizations or establishments that have a distinguished reputation;
- Command of a high salary or other significantly high remuneration for services, in relation to others in the field; or
- Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
If these criteria do not apply to the foreign national’s field, the foreign national may submit comparable evidence.
An applicant must first file a petition on Form I-140 with evidence that would convince an adjudicator that the applicant satisfies at least three of the above criteria. Even if the applicant meets three or more of the ten criteria, however, the I-140 can be denied under the two-step test used by the USCIS following Kazarian v. USCIS. Under that test, the USCIS must: (1) determine whether the petitioner has submitted evidence that meets the standards stated above; and (2) determine whether the evidence submitted is sufficient to demonstrate that the applicant meets the required high level of expertise for the extraordinary ability preference category during a final merits determination. In other words, meeting at least three criteria does not show extraordinary ability, but rather allows the application to move forward to the final merits stage where an USCIS adjudicator considers the totality of the evidence to assess whether the applicant demonstrates that the applicant is “one of that small percentage [at] the very top of their field of endeavor.” The applicant must demonstrate this by a preponderance of the evidence, and it is possible that the applicant fails at the final merits stage despite satisfying more than three evidentiary criteria.
After a I-140 denial, the applicant may appeal to the AAO. The AAO reviews the record de novo, meaning the AAO might hold that the applicant fails to satisfy even the criteria that the USCIS adjudicator initially found were satisfied. The following list the ten criteria and provide the AAO’s suggestions for submitting evidence for each criterion.
- Receipt of a lesser nationally or internationally recognized prizes or awards
Evidence for this criterion includes documentation (e.g., copy of award certificate or photo of award, letter from awarding organization) showing the applicant’s name as well as the criteria for receiving the award. The applicant should make sure there are no typos or errors on the documentation that would question the validity of the award. Student awards or fellowships generally do not satisfy this criterion. An award given to the applicant’s company also fail to satisfy the criterion, because the award should be given to the applicant. The award should also be given for the field of the applicant’s endeavor and should be nationally recognized beyond a single award ceremony. If the award is nationally recognized in another country, the applicant should explain the award in terms of its U.S.-equivalent. For entrepreneurs, receiving venture capital funding may serve as evidence under this criterion, but still requires the applicant to show that such funding amounts to a nationally or internationally recognized award.
Even if there is evidence of a qualifying award, the applicant must show at the final merits stage that the award is extraordinary compared to other awards in the upper echelon of the field. It would thus help to include the number of other candidates for the award and their credentials, information about the awarding committee, and media coverage of the award showing its reputation.
USCIS has approved some EB 1-A cases in the engineering field where the award was granted to the project, not to the engineer. USCIS has accepted evidence of the award, a detailed description of the project’s impact on the industry, and a letter confirming that the self-petitioner was the lead engineer of the project and that the petitioner’s contributions and expertise resulted in the project’s award.
- Membership in associations in the foreign national’s field of expertise that require outstanding achievements of their members
Evidence for this criterion includes documentation showing membership (e.g., a printout from an online database listing applicant’s membership, copy of membership card, confirmation letter from association) along with the membership criteria. For example, the AAO might deny this criterion if membership credentials are not stated in the organization’s bylaws. Such evidence should not raise questions about the document’s origin and authenticity. Membership should not be part of the applicant’s employment, although athletes on national sports teams would meet this criterion. The AAO might also deny this criterion if the organization is not deemed distinguished enough. Hence, adding a list of other members who are esteemed in the field helps, as well as publications covering the selectivity of the organization’s membership. In addition to evidence of qualifying membership, the applicant must provide evidence articulating how satisfying the criterion constitutes “outstanding achievement.”
In addition to presenting evidence of membership, such as a membership certificate and a detailed letter providing information about the panel of experts who admit and evaluate new members, evidence should include the admission criteria and reiterate that the applicant’s membership was approved due to their achievements. Providing USCIS with evidence of the association’s bylaws may result in USCIS misinterpreting the bylaws’ plain language.
- Published material about the foreign national in professional or major trade publications or other major media
Evidence for this criterion includes press materials (e.g., interviews, articles, TV/radio appearances) about the applicant and applicant’s accomplishments, along with evidence showing the reputation of the press source. Articles need to be primarily about the applicant and focus on their accomplishments. Interview transcripts must be mainly about the applicant and the evidence must contain the author of interview transcripts.
The press material should be a professional or major trade publication. If the material is on a website, the applicant must provide independent evidence of the website’s standing as a major media. If the press material is from another country, the applicant must submit evidence establishing it as a major trade publication with information such as circulation statistics showing how the publication compares to other publications in that country. Evidence establishing a professional or major trade publication cannot only have self-serving assertions about reputation and circulation, as the applicant must provide independent, objective evidence to support such claims. Promotional materials promoting the applicant’s products or services are not considered published material about the individual.
Even if there is evidence of a qualifying published material, the applicant must show at the final merits stage that the published materials recognized them for a career of sustained national or international acclaim.
- Participation, either individually or on a panel, as a judge of the work of others in the foreign national’s field
Evidence for this criterion includes invitations to serve as a judge, along with subsequent confirmation that the applicant rendered service as a judge or was a member of the judging panel. This criterion may apply to judging activities that constitute a routine part of the applicant’s occupation. Researchers may submit evidence of peer reviewing manuscripts, whereas artists, athletes, and entrepreneurs may submit evidence of judging contests and showcases. Entrepreneurs submitting company-issued certificates about their judging activities should make sure they are not inconsistent with other documentary evidence. The applicant should include criteria for the judge’s qualifications as well as evidence showing the high reputation of the organization or journal for which the applicant served as a judge. The evidence should specifically identify what work or whose work the applicant judged. The applicant should also include evidence that the petitioner was recognized for the reviewing activity.
Even if there is evidence of a qualifying judging activity, the applicant must show at the final merits stage how that activity shows sustained national or international acclaim. For example, the applicant may submit evidence showing a consistent history of completing a substantial number of review requests relative to others or serving in editorial positions for distinguished journals or publications.
For this criterion, USCIS expects the evidence to show that the petitioner contributed to judging the final outcome of a particular competition or event. The AAO initially denied an EB-1A petition because the evidence did not establish this, but approved the case after the petitioner filed a motion to reconsider that included evidence showing that the petitioner’s role as the technical judge qualified for this criterion.
- Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the foreign national’s field
Evidence for this criterion includes publications, citations to the applicant’s published work, and letters from experts in the field. Among the thirty-nine AAO decisions reviewed, twenty-four decisions determined that this criterion was unmet, showing how difficult it is for applicants to satisfy this criterion. A USCIS Policy Memorandum suggests submitting peer-reviewed articles in scholarly journals that garnered widespread commentary, or entries in a citation index citing the applicant’s work as authoritative in the field. It is not enough that one article cites the applicant’s work as one of “key references,” because the evidence needs to show widespread commentary throughout the field. Evidence of receiving research grants is irrelevant, unless the grant was for an original contribution of major significance. The work must also be related to a field in which the applicant currently conducts research. The applicant’s work cannot be one of several works that had an impact in the field. Screenshots of social media pages are not strong evidence of original contributions.
The applicant’s evidence must first show that the contribution was “original.” The evidence must then explain why the original contribution was of major significance. That requires showing that the applicant’s work sparked some demonstrable change that has been widely implemented throughout the field or that remarkable influenced the field. In other words, evidence must include specific examples of how the applicant’s work was highly regarded by the entire field, for a continuous period of time.
For citations, the applicant thus needs to show evidence comparing citations to other similarly highly cited articles in the field to distinguish the applicant’s work as majorly significant. This requirement has made it harder for applicants to submit reference letters as evidence, because the AAO has been requiring specific, objective evidence showing how the applicant’s work widely impacted the overall field and dismissing letters that are conclusory and use hyperbolic language. Submitting multiple letters with identical wording could even lead to USCIS inferring that the letters were written by the petitioner. Reference letters discussing the potential significant impact of the applicant’s work will also fail. Where objective measures like citation count are unavailable to show major significance, reference letters may explain why such measures are not good measures of the applicant’s impact and give a more descriptive example of the applicant’s impact on the entire field.
Even if the applicant manages to submit satisfactory evidence of original contribution of major significance, the applicant must also articulate at the final merits stage how such contribution demonstrates that they are at the very top of their field. The AAO itself has declared this to be a very high bar, noting that the final merits stage focuses not on “influence” but rather on “sustained acclaim.” To overcome this high bar, the applicant should provide evidence that compares the applicant’s work to those considered to be at the very top of the field.
- Authorship of scholarly articles in the foreign national’s field, in professional or major trade publications or other major media
Evidence for this criterion includes any publications that include the applicant’s name and accomplishments. Evidence of circulation rate or ranking can help. The evidence should establish that the intended audience of the publication shows that it was a “scholarly article.” The evidence should be published before filing the I-140 petition and should not contain inconsistencies or typos that might question its validity. The criterion might be deemed unmet if publications were sporadic and their significance within the field is unexplained.
Even if the applicant provides sufficient evidence of scholarly articles, the applicant must still show at the final merits stage how the publications impacted their field to the extent they were placed among those at the top of the field. For example, providing numerous independent citations for an article authored by the applicant may provide evidence that the work has been recognized and that other researchers have been influenced by it.
- Display of the foreign national’s work at artistic exhibitions or showcases
Evidence for this criterion would include brochures, posters, advertisements, or photos of exhibits including the name of the applicant. It also helps to provide the number of people who attended, as well as evidence of the exhibition’s prestige and the media’s reaction to it to explain how the criterion places the applicant among those at the very top of the field. The exhibition or showcase must be “artistic,” and the purpose of the exhibition or showcase must be to display the petitioner’s own work.
- A leading or critical role for organizations or establishments that have a distinguished reputation
This can be a helpful criterion for entrepreneurs who typically hold a leading role in their companies. Evidence for this criterion includes documentation (e.g., confirmation letter, organization chart, internal awards, etc.) showing employment as an executive or other leading role and evidence that the applicant actually performed that role, contributing in some way to the organization. The reputation of the organization should also be documented, and the applicant’s role must have an impact beyond just the organization. Merely contributing to important projects is not enough, as the applicant must explain the impact of their work on the company’s overall operations, finances, or research. Media appearances or having a large number of followers on social media likely do not provide sufficient evidence to meet this criterion.
Even if the applicant satisfies the evidentiary criterion of a leading role, the applicant must explain at the final merits stage how the applicant drew significant attention or gained significant recognition as a result of their leading role. Even if the applicant had played a crucial role in various projects of the organization, the AAO may still deny the petition if there is no evidence explaining how such a leading role translated into an equally prominent role within the field. When an applicant has worked for multiple companies, the AAO may look at the applicant’s role with all the companies to see if the employment resulted in recognition from the field reflecting a career of sustained national or international acclaim.
USCIS has issued requests for additional evidence partially accepting this criterion, meaning accepting the past component of this criteria and asking for evidence that the applicant will continue having a leading role in a distinguished organization in the future.
- Command of a high salary or other significantly high remuneration for services, in relation to others in the field
Evidence for this criterion includes tax returns, paystubs, and contracts showing that the applicant actually received the stated salary. The applicant’s salary must be high compared to others who are performing similar work and have similar levels of experience. Hence, it is important to also include evidence showing comparable salary data of others in the same field. Ideal evidence would be a W-2 accompanied by a letter from the employer confirming the salary and geographical-position-appropriate compensation data showing the salary of others holding the same position in the same geographical area.
Even if the applicant provides evidence of a high salary, the applicant must still show at the final merits stage that the earnings are at a level reflecting that he is one of a small percentage who has risen to the top of the field.
For this criterion, applicants should provide support of the applicant’s salary and a reference of the foreign labor Certification Data Center or online wage library that reflect a level 4 salary. Applicants should also submit a letter from the applicant’s employer confirming that the compensation offered to the applicant is high compared to the compensation of other professionals with similar education and experience, and that such high compensation is based on the applicant’s expertise.
- Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales
Performing artists mostly use this criterion. The “commercial successes” do not refer to an individual’s personal income, as that is covered by the “high salary” criterion. Evidence for this criterion includes evidence of relevant box office, record sales, TV ratings, and audience viewing statistics. Press materials discussing commercial success or proof of payment for royalties and revenues also help. The applicant should also explain how the commercial success places the applicant among those at the very top of the field.
- Win at the service center level so you don’t have to appeal to the AAO
While the AAO decisions we reviewed suggest a high denial rate, many EB-1A I-140 petitions get approved at the service center level and are not published. For example, some immigration law firms share success stories about their EB-1A clients, which suggest that a robust initial application can be approved.
The AAO may dismiss evidentiary criteria that the service center found to be satisfactory, because the AAO revisits all evidentiary criteria in the original submission, not just those found probative by the service center. The AAO may even find new reasons to support a denial. Hence, it could be better to have the service center rule on the sufficiency of the evidentiary criteria. But because the service center may still deny the petition at the final merits stage even if the applicant meets more than three evidentiary criteria, it is crucial that the applicant ensures each evidentiary criterion is accompanied by an explanation as to how that places the applicant at the very top of their field. As with evidentiary criteria, it could be easier to persuade the service center at the final merits stage than the AAO.
- Appeal to the AAO with stronger evidence
If the applicant appeals to the AAO, ensure that all evidentiary criteria are met and accompanied by explanations as to how they demonstrate sustained national or international acclaim. The applicant may provide evidence of additional criteria even if one only needs to meet three, because the AAO will consider all the evidence when evaluating at the final merits stage. The applicant should also not assume that the AAO will approve the criteria that the service center approved. The applicant should have this in mind when supplementing the petition on appeal.
It is not useful for an applicant to cite federal district court decisions when appealing to the AAO because the AAO considers only federal circuit court decisions to bind the agency.
Because the decision is ultimately up to the adjudicator’s interpretation, the applicant should focus on advocating for each piece of evidence to demonstrate how that piece places the applicant in the very top of their field. It is better to omit evidence that is relatively weaker rather than submitting everything, because the AAO may point to the weaker evidence to uphold the denial. Where an applicant believes that the service center did not consider all of the applicant’s evidence or omitted an accomplishment at the final merits stage, appeal to the AAO.
- Bypass the AAO and sue directly in federal court
If the service center denies the petition, the applicant may choose to sue directly in federal court instead of appealing to the AAO, arguing that USCIS’s decision was arbitrary or capricious as a matter of law. If the applicant wins in federal court, the court will likely remand to the service center for further proceedings. It will be especially more beneficial to sue in federal court if the service center disregarded or misconstrued important facts and evidence, failed to adequately explain its basis for denial, or heightened the evidentiary standard by requiring more stringent evidence than is normally required. The applicant should sue if the service center simply held that the evidence does not establish extraordinary ability, effectively foregoing the first step under Kazarian.
Sometimes, the USCIS might voluntarily reopen the applicant’s denied petition and reconsider its decision once the applicant files a lawsuit, meaning bringing a lawsuit itself may help the applicant. Suing in federal court after losing an AAO appeal is often not advisable, because it incurs higher costs and the court might be less likely to overturn the AAO’s reasoned decision than a service center’s shorter decision.
In denying I-140 petitions for extraordinary ability, many AAO decisions note that “[t]he Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top of their respective fields, rather than for individuals progressing toward the top.” Successfully showing extraordinary ability is difficult for all applicants, especially because of the two-step analysis under Kazarian. It became even harder under the stricter standards applied during the Trump administration. It remains to be seen whether this may change under the Biden administration.
This does not mean, however, that applicants should not attempt to obtain an EB-1A green card. By focusing on what service centers and the AAO really look for and submitting robust evidence, those who have extraordinary ability should be able to win approval. Like the “golden snitch” in the Harry Potter series, the “genius green card” may be elusive, but with proper preparation it can be obtained.