Recent Trends in EB 1 Extraordinary Ability and Outstanding Professor/Researcher Green Card Petitions

By Dan Berger, Emma Binder, Philip Katz, David Wilks, and Stephen Yale‑Loehr^[1]*

Introduction

Practitioners have two key strategies to keep up with trends in U.S. Citizenship and Immigration Services (USCIS) adjudications. One is following individual decisions. The other is reading non‑precedent decisions on cases appealed to the Administrative Appeals Office (AAO) at USCIS. In the past, attorneys had to share AAO non‑precedent decisions with each other or go to the AAO office in Washington, D.C. to read them. Now, however, practitioners may research these decisions online.^[2]

Over the years a series of articles have reviewed AAO cases looking for trends.^[3] This article provides an update from 2017 through early 2018 for AAO decisions in EB‑1‑A extraordinary ability^[4] and EB‑1‑B outstanding professor/researcher green card categories.^[5] Although they impose very high standards, these two categories are extremely useful because they do not require Department of Labor processing, unlike most employment‑based green cards.^[6]

Reviewing AAO decisions helps the practitioner craft the petition and supporting documents. Even though non‑precedent decisions are not binding on USCIS, they can be persuasive. There are few AAO decisions on EB‑1‑B outstanding professor/researcher cases, but this article reviews those with a particular focus on the petitioner’s ability to pay the offered wage (an emerging trend from recent USCIS requests for evidence).

Overall, to win an EB‑1 case, the I‑140 package must convince a USCIS adjudicator that the individual has a significant reputation in the field (“sustained acclaim” for EB‑1‑A or “international recognition” for EB‑1‑B). Many clients want to dive directly into the criteria and types of evidence to present. However, we recommend evaluating the client’s reputation to begin to assess a case, and then planning a case strategy.

USCIS now scrutinizes all petitions particularly carefully. From September 2017 to March 2018, out of eighty‑four EB‑1‑A appeals, only eight were sustained—less than a ten percent success rate—so careful preparation in building the case is more important than ever.^[7]

This article contains three parts. The first part discusses AAO EB‑1‑A decisions; the second, EB‑1‑B decisions. Both parts analyze issues that recently arose in the AAO’s discussion of different forms of evidence, and provide tips for practitioners. The third part is an Appendix that summarizes the various cases discussed in this article.

1. EB‑1‑A Petitions

The EB‑1‑A Standard

The statute defines a person with extraordinary ability as one who:

(i) 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) seeks to enter the United States to continue work in the area of extraordinary ability, and

(iii) his or her entry into the United States will substantially benefit prospectively the United States.^[8]

USCIS regulations state that a green card petition for someone who claims extraordinary ability must be accompanied by evidence of a one‑time achievement in the form of a major, internationally recognized award, or at least three of the following ten criteria:

(i) Documentation of the individual’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(ii) Documentation of the individual’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(iii) Published material about the person in professional or major trade publications or other major media, relating to his or her work in the field for which classification is sought;

(iv) Evidence of the person’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

(v) Evidence of the person’s original scientific, scholarly, artistic, athletic, or business‑related contributions of major significance in the field;

(vi) Evidence of the individual’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

(vii) Evidence of the display of the person’s work in the field at artistic exhibitions or showcases;

(viii) Evidence that he or she has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

(ix) Evidence that the person has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.^[9]

We discuss below issues that recently arose in the AAO’s discussion of different forms of evidence in EB‑1‑A petitions. We conclude by providing some tips for practitioners based on our research.

 

EVIDENTIARY ISSUES

One‑time achievement

A one‑time achievement must be a major international prize, such as a Nobel prize, a Pulitzer prize, an Olympic medal, or an Academy award. It is uncommon to fulfill this criterion. Awards that are well known only in a single country or region will not satisfy this category.

Receipt of prizes or awards for excellence

Lesser awards must still signify excellence, and national or international recognition. If an award is considered nationally important abroad, it is helpful to equate the award to its U.S. equivalent for context. For example, one case referred to an award for a choreographer as “Canada’s version of the Tony Awards.”^[10] The AAO at times looks for national or international media coverage to establish widespread recognition of awards.

Awards that did not signify national or international recognition include: student scholarships;^[11] research grants^[12] and fellowships;^[13] and certificates and awards from collegiate^[14] or regional^[15] sporting events. In artistic fields, the AAO values markers of celebrity, such as the dancer/choreographer who is interviewed on a program that “only interviews . . . dance celebrities,”^[16] and the composer whose exposure and “level of media coverage is consistent with name recognition.”^[17]

Additionally, the USCIS website suggests that funding from an established venture capital firm or angel investor can count as an award in the O‑1 visa context.^[18] For EB‑1-A petitions, this evidence may be better used for the final merits determination, with clear documentation of the competitiveness of the funding process.

Membership in associations that require outstanding achievements

Fulfillment of this criterion tends to be more common within artistic and athletic professions, such as athletes who serve on their national sports teams.^[19] Within the meaning of 8 C.F.R. § 204.5(h)(3)(ii), association membership should not be part of someone’s employment.^[20] If the evidence in the record does not establish that an association of which the petitioner is a member requires outstanding achievements, the AAO has shown that it is willing to consider additional supporting documentation, as was the case in a sustained appeal by a water skier who did not initially meet the membership criterion.^[21]

Published material about the person

To fulfill this criterion, the individual must be the primary emphasis of the published work. Articles that relate to the person’s work or merely quote them will not satisfy.^[22] Published material must focus on the person’s accomplishments as opposed to personal life (e.g., a biographical article relating solely to personal life).^[23] On the other hand, published material may still fulfill this criterion even if it does not discuss the content of a person’s work, but rather some resulting award or grant received because of the work.^[24]

Participation as a judge of the work of others

Academic researchers most often fulfill this criterion by peer reviewing manuscripts for scholarly journals. Scholarly judging can also take the form of serving on graduate dissertation committees,^[25] serving on editorial boards, reviewing conference papers, or serving as a conference chair.

Fulfilling this criterion may be more challenging for artists, athletes, and entrepreneurs, for whom peer review is not an institutionalized part of their fields. They may, instead, participate as invited judges for contests, artistic showcases, music festival juries, and sporting events. However, this criterion cannot be fulfilled by “referee” activities (e.g., serving as a referee of a kickboxing contest).^[26] This may present a challenge to applicants in athletic professions.

The AAO values evidence that an individual was chosen to serve as a judge due to his or her expertise and reputation. For example, in the case of a journalist who was chosen to judge a contest for younger journalists, the AAO found that she was chosen as a “media figure” due to her contributions to the field.^[27] Despite having judged a pool of emerging journalists, the AAO found that she fulfilled this category due to the esteemed basis upon which she was chosen.

Original contributions of major significance

It is relatively simple to establish that an applicant’s contributions are original. Issues more commonly arise when USCIS or the AAO is considering whether contributions are majorly significant, which must be demonstrated by a significant impact on their field. Generally speaking, contributions have significant impact if they have sparked some demonstrable change within the field, or if they have been adopted or cited by a large number of independent researchers.

For example, contributions may have major significance if they represent a measurable increase to the current body of scholarship, as in the case of an insect researcher whose discovery of ninety‑six new species of jumping spiders represented “10% of the overall documented information regarding certain spider families.”^[28] An individual’s findings may also have major significance if they disrupt some aspect of the field that was previously thought to be canonical. The AAO sustained the appeal of a researcher of theoretical cosmology who identified flaws in one of the field’s most widely accepted theories, which prompted “fierce debate among theoretical cosmologists.”^[29] Landmark findings such as these are typically widely cited, but similarly important is the level of debate and commentary they inspire.

In this category, the AAO also looks for evidence that an applicant’s work has been widely used, adopted, built on, or cited by independent peers. For example, the AAO favors work that has been standardized and replicated, such as a tool that has become a “baseline design”^[30] or an invention that has been patented and commercialized.^[31] Moreover, the AAO looks for concrete evidence that an applicant’s work has already been implemented or replicated by independent researchers, not that it simply has the capacity to be replicated or has only been used by the applicant’s colleagues. For example, the AAO denied the petition of a medical technician whose technology was “applicable to hospitals nationwide,” but who lacked evidence to show that it had been replicated beyond his own institution. This technician also developed a patented tool that was used on 2,000 patients within his own hospital, but had not been used elsewhere. The AAO deemed this application too “localized” to be considered majorly significant.^[32]

Citation count is also an important factor in determining the impact of a researcher’s findings. However, the quality of submitted citations is critical in determining whether the field has genuinely taken interest in a researcher’s work. In one case, a data analyst verified that many of his papers earned unusually high numbers of citations in the context of his field. Yet the AAO held that his citations failed to constitute a significant impact because the submitted citations did not highlight his work as “particularly important,” and often used his work to merely provide “background information.”^[33]

In recent months, we have observed officers comparing an individual’s citation count to those of their colleagues or references—a practice that regrettably does not account for differences in career paths, research topics, or time spent in the field. In one case, the AAO appeared to acknowledge this. After having his citation count compared to a leading researcher’s 1,981 citations, one scholar claimed that this comparison was unreasonable due to “differences in their fields of research.” The AAO agreed, stating that “we acknowledge that the Petitioner’s citations should not be compared against those of [redacted] with an expectation that he have citations in the thousands.” Nevertheless, the AAO upheld the denial because the individual’s comparison of his citation count to fourteen other researchers at his institution was an “internal comparison.”^[34]

Extensive citations, scholarly debates, and patented tools are commonly submitted to establish major significance, but all are most frequently used by scholars, scientists, and researchers. This category can be harder to fulfill for artists, athletes, journalists, and entrepreneurs. The work of entrepreneurs, for example, may be so cutting‑edge that their work has not yet influenced the broader field. Alternatively, their “new technology or bright idea may not fit into a traditional field.”^[35]

Authorship of scholarly articles

Researchers have an advantage over other applicants in this category, since publication is an expected and institutionalized aspect of their work. However, the AAO is critical of inconsistent and declining publication records. According to the AAO, a publication rate that has declined in the past five years or so may indicate a lack of sustained acclaim, even if the individual published prolifically in prior years.^[36] In addition, the AAO continues to use a restrictive definition of what constitutes a “scholarly article,” such as stating that a scholarly article is that which is written for persons with “profound knowledge or scholarship” in a field.^[37] Thus, the evidentiary standard for this criterion appears to include not only the occupation of the author and the subject matter of the article, but also the article’s intended audience.

Display of work at artistic exhibitions

This criterion is best suited for artists with a visual component to their work, such as photographers, painters, dancers, and musicians who perform live in concert. If an artist’s field does not allow for visual display, comparable evidence may demonstrate that their work is still being exhibited, albeit not visually. For example, a composer and lyricist satisfied this criterion with evidence that their music had been performed in concert. The AAO recognized that:

“Display” implies a visual component to the exhibition or showcase whereas the Petitioner’s compositions are for listening entertainment. Thus, we are satisfied that this criterion does not readily apply to composers and lyricists rather than it being a difficult one for them to meet. Moreover, the evidence we are considering here does not fall directly under a separate criterion. . . . In this matter, a revue or compilation that celebrates musical compositions at a distinguished venue and receives favorable reviews is sufficiently analogous to a visual artistic display.^[38]

Leading role for organizations

The AAO disfavors applicants whose role in an organization does not have a demonstrable impact beyond the organization itself. This is especially common if the organization is a private company. The AAO tends to look at the applicant’s role in the organization’s hierarchy, the duties they performed, and most importantly the impact of the applicant’s role on the organization.

For example, this criterion was satisfied for a marketing researcher who served for three years at a business university. His tenure at this university, the director stated, expanded the institute’s “visibility and renown,” lending to its current reputation as a “standout institution in business and management training.”^[39]

This criterion appears to be particularly well suited for entrepreneurs, who may be CEOs of their own companies. However, the AAO is not always convinced that entrepreneurs are working in leading roles for their companies, or that their companies are distinguished. Moreover, the AAO’s exact definition of “distinguished,” and thus the documentary evidence needed to show that an organization is distinguished, remains unclear in certain cases. In one such case, the decision called for both “independent, objective evidence” and comparative evidence from similar organizations.^[40] Generally, however, to fulfill this criterion, an entrepreneur should address the company’s reputation and standing and also provide documentation of the company’s structure, such as a personnel chart.^[41]

In addition, some decisions exhibit circular reasoning in evaluating the evidence submitted by applicants in their appeals. In denying a motion to reopen by a taekwondo athlete and instructor, the decision noted that “[i]n general, a leading role is evidenced from the role itself” and that the evidence did not demonstrate that the applicant’s roles in the organizations he specified were in fact leading or critical.^[42] Such analysis does not provide any clues as to what is necessary to fulfill this criterion, nor does it point to what is missing from the body of evidence that led to this finding.

High salary

The AAO looks for evidence that an applicant’s salary is high in comparison with their peers in the field at large. Moreover, a person’s salary must be high compared to others who are performing similar work, have similar levels of experience, and who work in the same geographical location. This is demonstrated by the case of a neonatologist whose salary was fifteen percent higher than a national average. However, the AAO held that this national average did not account for differences in levels of experience or geographic indicators.^[43]

Commercial successes in the performing arts

Commercial success must be demonstrated by a record of large audiences or high sales. In the case of a choreographer who choreographed dances for plays, the submitted evidence included a letter from the general manager of a ticket sales outlet, stating that one such play sold out on its initial run. However, the AAO did not find that this single production correlated to commercial success.^[44]

In evidentiary criteria, EB‑1‑A petitions still appear to favor researchers, scientists, and scholars, for whom publications, citations, and peer review are standard components of their professions. Even then, petitions benefit from showing that that a diversity of venues follow the research (such as multiple laboratories, companies or agencies). Even if the petitioner’s work is being used or commercialized, it must be used throughout the field, rather than by a “select few.”^[45]

Extraordinary ability petitions can be particularly challenging for artists with no visual component to their work, athletes, journalists, and entrepreneurs. Yet proving extraordinary ability to the satisfaction of the AAO remains difficult across all disciplines. The AAO carefully scrutinizes evidentiary criteria and considers very few individuals to be at the “top of their field.” Therefore, the AAO overturns USCIS EB‑1‑A denials only rarely.

EB‑1‑A TIPS/POINTERS

Do

• Accompany documentation of an award with information to contextualize its reputation, such as media coverage
• Address the professional credentials that led to an applicant being invited to perform judging work
• Submit sample citations that discuss the researcher’s work at length, or in significant ways, to demonstrate the quality of the citations
• Highlight significant citations in the cover letter, such as coverage in a review article
• Articulate the boundaries of the field and the petitioner’s impact on that field
• Highlight debate and conversation that the individual’s work has caused
• When discussing a person’s role in an organization, clearly articulate the organization’s structure and the petitioner’s role within that hierarchy—even for entrepreneurs who are CEOs of their own companies

Don’t

• Assume that the reputation of an award, publication, company, or organization is obvious. Always include documentation, such as media coverage or circulation statistics, for context
• Submit published articles about the applicant that merely quote them, or mention their work in passing
• Submit documentation of “referee” activities in lieu of judging work
• Readily present citation counts of the applicant’s references or colleagues; these citation counts may serve as an unfavorable comparison to the petitioner’s
• Rely on internal applications of a person’s work to demonstrate impact, such as implementations within their own institution or university
• Submit evidence of organizational or association roles that are an integral part of the person’s employment
• Assume that patents alone demonstrate application of a person’s work

2. EB‑1‑B Petitions

The EB‑1‑B Outstanding Professor Researcher Standard

A person qualifies for immigrant visa classification as an outstanding professor or researcher if he or she:

(i) is recognized internationally as outstanding in a specific academic area,

(ii) has at least three years of experience in teaching or research in the academic area, and

(iii) seeks to enter the United States—

(I) for a tenured position (or tenure‑track position) within a university or institution of higher education to teach in the academic area,

(II) for a comparable position with a university or institution of higher education to conduct research in the area, or

(III) for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least three persons full‑time in research activities and has achieved documented accomplishments in an academic field.^[46]

USCIS regulations state that a petition for an outstanding researcher or professor must be accompanied by:

(i) Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following:

(A)      Documentation of the individual’s receipt of major prizes or awards for outstanding achievement in the academic field;

(B)       Documentation of the person’s membership in associations in the academic field that require outstanding achievements of their members;

(C)       Published material in professional publications written by others about the person’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;

(D)      Evidence of the individual’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;

(E)       Evidence of the person’s original scientific or scholarly research contributions to the academic field; or

(F)       Evidence of the individual’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

(ii) Evidence that the person has at least three years of experience in teaching and/or research in the academic field. Experience in teaching or research while working on an advanced degree will only be acceptable if the individual has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized in the academic field as outstanding. Evidence of teaching and/or research experience shall be in the form of letter(s) from former or current employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the person.^[47]

We discuss below issues that recently arose in the AAO’s discussion of different forms of evidence in EB‑1‑B petitions. We conclude by providing some tips for practitioners based on our research.

There were only a handful of EB‑1‑B AAO decisions within the past six months, so it is difficult to describe trends. However, with greater scrutiny of all cases, the relatively high approval rates (and subsequent paucity of appeals) should not be taken for granted.^[48]

Specifically, the AAO examines whether references and other researchers have built or relied on the beneficiary’s research.^[49] Citations are a common metric, but any use of the beneficiary’s work is worth noting, including having an article or data in a course syllabus, grant application, report, etc. This takes more time to research than a simple citation search, but is very much worth the effort.

Regarding peer review, journal reviews are given more weight than conferences. The ranking of the journals is also important, as well as where the peer review invitations came from (i.e., they are less valuable if they came from the beneficiary’s colleagues or co‑authors.) The petitioner bears the burden of proving that the peer reviewing their work is impressive and part of a selective group.

Impact factors, and perhaps even any rankings at all, of a beneficiary’s publications are discounted to a surprising extent: “While the impact factor relates to the journal as a whole, we will not presume that every author whose work appears in such a journal is internationally recognized as outstanding. Rather, we look for information about the individual article.”^[50]

The authors have found conversations with a reference librarian helpful to consider metrics and search tools for building evidence.

 

EVIDENTIARY ISSUES

In recent EB‑1‑B AAO decisions, evidentiary issues have concerned whether the beneficiary is internationally recognized as outstanding, and whether the petitioner has the ability to pay the proffered wage.

International recognition as outstanding

Two recent AAO non‑precedent decisions hinged on whether the respective beneficiaries were internationally recognized as outstanding in their fields. In each case, the AAO considered whether the beneficiary’s peer review work, reference letters, articles, and citation counts constituted sufficient international recognition.

Researchers frequently submit evidence that they have peer‑reviewed manuscripts for scholarly publications. The AAO has found that peer review can serve as evidence of international recognition if, for example, the researcher’s expertise has been requested by nine different “high ranking journals,” which demonstrates a “consistent interest” in the researcher’s views.^[51] Reviewing only one scholarly article and two conference papers, on the other hand, is insufficient to demonstrate international recognition.[52]

In other words, the beneficiary may satisfy two criteria but fail on the final merits determination. Peer review invitations are also devalued when they come from a researcher’s colleagues.^[53]

Furthermore, to establish international recognition, the AAO tends to look for evidence that an individual’s research is being built or relied on by independent researchers. A beneficiary’s contributions may be original,ß but the AAO also looks for evidence of independent institutions building on the results.^[54] Lengthy citations of a researcher’s work can demonstrate that others have significantly relied on his or her findings.

Ability to pay

Petitioners must document their ability to pay the beneficiary’s proffered wage. According to the regulations,^[55] evidence of ability to pay must be in the form of copies of annual reports, federal tax returns, or audited financial statements. Alternatively, an employer with over 100 employees can present a letter from a financial officer attesting to the ability to pay the salary. In one case, a denial resulted when a petitioner offered internal financial reports, rather than audited ones. This denial was reversed when the petitioner offered audited financial reports to the AAO.^[56]

In the past, the “ability to pay” standard was not strictly enforced for academic or larger employers despite the regulatory requirement for documentation. We suspect USCIS adjudicators felt that the ability of a major university to pay the salary of a professor, for example, was obvious. As a result, some petitioners are not in the habit of providing ability‑to-pay documentation.

The annual report, audited financial statement, federal tax return, or financial officer letter should cover the time from the establishment of the priority date to obtaining permanent residence. Except in the case of a financial officer’s letter, the documents should show net profits or net current assets at or above the offered wage. An alternative is to include the beneficiary’s paystubs, W‑2 forms and federal tax returns if they clearly show that the offered wage has been paid.^[57]

 

EB‑1‑B CONCLUSION

The AAO considers far fewer EB‑1‑B cases than EB‑1‑As, likely because EB‑1‑B is an easier standard to satisfy. Moreover, USCIS denials of EB‑1‑B are more commonly overturned by the AAO. Issues arise, however, around whether beneficiaries have attained international recognition as outstanding and whether petitioners can demonstrate their ability to pay the proffered wage.

EB‑1‑B TIPS/POINTERS

Do

• Focus on how references and other independent researchers have “built on” or “relied on” the beneficiary’s results
• Submit a sample of articles that cite the beneficiary’s work at length
• Explicitly address the professional qualifications that led to the beneficiary being invited to perform peer review
• Include adequate financial documents to demonstrate the ability to pay the wage

Don’t

• Include peer review invitations that clearly come from a researcher’s colleague or co‑author
• Rely exclusively on references from the petitioner, or the petitioner’s applications of the beneficiary’s work

 

3. Appendix ‑ Summaries of the EB‑1 cases reviewed for this article.

Appeal sustained (EB‑1‑A granted):

Appeal dismissed (EB‑1‑A denied):

EB‑1‑B cases

Following is a summary of the two key recent EB‑1‑B cases to show the type of analysis by the AAO:

^[1]* Dan Berger (dhb@curranberger.com) is a partner at the immigration law firm of Curran & Berger LLP in Northampton, MA. Dan is a founding member of the US Alliance of International Entrepreneurs (usaie.org), which provides comprehensive services and advice to international entrepreneurs. He is also an Honorary Fellow of the American Academy of Adoption Attorneys, the Regulatory Practice Coordinator for the National Association of Foreign Student Advisers (NAFSA), and a member of the USCIS Headquarters Liaison Committee for the American Immigration Lawyers Association (AILA). He edited AILA’s Immigration Options for Academics and Researchers.

Emma Binder is a former paralegal at Curran & Berger LLP in Northampton, MA. She is currently an MFA candidate at the University of Wisconsin, Madison.

Philip Katz is a paralegal at Morrison Cohen LLP in New York, NY. He plans to attend law school next fall.

David Wilks (djw@millermayer.com) is a business immigration attorney at Miller Mayer LLP (http://www.millermayer.com) in Ithaca, NY. He has helped countless entrepreneurs and new businesses meet their immigration goals. A graduate of Cornell Law School, he currently serves as national vice chair of AILA’s USCIS Vermont Service Center Liaison Committee. He is a member of USAIE.

Stephen Yale‑Loehr (syl@millermayer.com) is co‑author of Immigration Law and Procedure, the leading 21‑volume immigration law treatise, published by LexisNexis. He is also Professor of Immigration Practice at Cornell Law School, and is of counsel at Miller Mayer LLP, where he advises entrepreneurs, investors, and businesses. He cofounded USAIE, and chaired AILA’s Business Immigration Committee in 2017–18.

Copyright © 2018 by Dan Berger, Emma Binder, Philip Katz, David Wilks, and Stephen Yale‑Loehr. All rights reserved.

^[2] USCIS, AAO Non‑Precedent Decisions, https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao/aao-non-precedent-decisions (last updated Feb. 26, 2018). Older reviews of AAO cases by the authors were done without the benefit of online searching. See, e.g., Jennifer Riley, Dan Berger & Stephen Yale‑Loehr, Current Trends in EB‑1‑2 Outstanding Researcher Cases, 7‑18 Bender’s Immigr. Bull. 01 (2002).

^[3] See, e.g., Dan Berger, Jeffrey Goldman & Elizabeth Quinn, EB‑1‑2 Outstanding Researcher Cases: Issues and Trends, available at http://curranberger.com/wp-content/uploads/2017/07/EB-1-Boutstandingresearchers.pdf (last visited July 2, 2018) (Outstanding Research petitions); Megan Kludt, Anna Angel & Kelsey Camire, Recent Trends in National Interest Waiver Cases, 18‑12 Bender’s Immigr. Bull. 01 (2013), also available at http://curranberger.com/wp-content/uploads/2017/07/NIWcases.pdf (National Interest Waiver petitions); David Wilks, Brooke Ireland & Stephen Yale‑Loehr, Entrepreneurship in the National Interest: A Review of AAO National Interest Waiver Decisions under Matter of Dhanasar, Miller Mayer LLP (May 17, 2018), https://millermayer.com/2018/entrepreneurship-in-the-national-interest-a-review-of-aao-national-interest-waiver-decisions-under-matter-of-dhanasar/ (National Interest Waiver petitions); David Wilks, Brooke Ireland & Stephen Yale‑Loehr, Extraordinary Entrepreneurs Require Extraordinary Evidence: A Review of Recent Nonprecedent EB‑1A AAO Decisions Under the Trump Administration, 23‑10 Bender’s Immigr. Bull. 02 (2018) [hereinafter Extraordinary Entrepreneurs].

^[4] See generally Charles Gordon, Stanley Mailman, Stephen Yale‑Loehr & Ronald Y. Wada, 3 Immigration Law and Procedure § 39.03[2] (2018) [hereinafter Immigration Law and Procedure]; Chris Gafner & Stephen Yale‑Loehr, Attracting the Best and the Brightest: A Critique of the Current U.S. Immigration System, 38 Fordham Urb. L.J. 183 (2010); see also, e.g., Miller Mayer Success Story: O‑1 Extraordinary Ability Visa Approval, Miller Mayer LLP (Nov. 15, 2017), https://millermayer.com/2017/miller-mayer-success-story-o-1-extraordinary-ability-visa-approval/ (summarizing O‑1 visa approval for company owner). The EB-1-A category has been in the news recently as the “Einstein Visa.” See, e.g., Miriam Jordan, Did Melania Trump Merit an ‘Einstein Visa’? Probably, Immigration Lawyers Say, N.Y. Times (Mar. 4, 2018), https://www.nytimes.com/2018/03/04/us/melania-trump-einstein-visa.html.

^[5] See generally Immigration Law and Procedure, supra note 4, at § 39.03[3].

^[6] See generally id. at ch. 44.

^[7] Note: this does not mean that EB‑1‑A cases have a ten percent approval rate overall. Historically, USCIS has approved between forty and sixty percent of EB‑1‑A petitions. USCIS, Approval and Denial Statistics for I‑140, Immigrant Petition for Alien Workers, https://www.uscis.gov/working-united-states/permanent-workers/approval-and-denial-statistics-i-140-immigrant-petition-alien-workers (last updated Feb. 28, 2011) [hereinafter USCIS I‑140 Statistics].

^[8] Immigration and Nationality Act (INA) § 203(b)(1)(A), 8 U.S.C. § 1153(b)(1)(A).

^[9] 8 C.F.R. § 204.5(h)(3).

^[10] Matter of F‑H‑, ID# 607053 at 4, 2018 Immig. Rptr. LEXIS 664 at *9–*10 (AAO Jan. 25, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/JAN252018_03B2203.pdf (last visited June 28, 2018).

^[11] Matter of Y‑W‑, ID# 889978 at 2–3 (AAO Feb. 27, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/FEB272018_01B2203.pdf (last visited June 28, 2018).

^[12] Matter of S‑M‑, ID# 919818 at 2–3 (AAO Feb. 27, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/FEB272018_05B2203.pdf (last visited June 28, 2018).

^[13] Matter of S‑S‑G‑, ID# 833661 at 2–3, 2018 Immig. Rptr. LEXIS 661 at *5–*6 (AAO Jan. 24, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/JAN242018_04B2203.pdf (last visited June 28, 2018).

^[14] Matter of P‑M‑W‑, ID# 1052433 at 3 (AAO Apr. 18, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/APR182018_01B2203.pdf (last visited June 28, 2018).

^[15] Matter of S‑L‑, ID# 926509 at 2 (AAO Feb. 27, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/FEB272018_04B2203.pdf (last visited June 28, 2018).

^[16] Matter of F‑H‑, ID# 607053 at 5, 2018 Immig. Rptr. LEXIS 664 at *11 (AAO Jan. 25, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/JAN252018_03B2203.pdf (last visited June 28, 2018).

^[17] Matter of M‑L‑R‑, ID# 597102 at 4, 2018 Immig. Rptr. LEXIS 665 at *9 (AAO Jan. 25, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/JAN252018_04B2203.pdf (last visited June 28, 2018).

^[18] USCIS, Understanding O‑1A Requirements, https://web.archive.org/web/20170504113541/https://www.uscis.gov/eir/visa-guide/o-1a-extraordinary-ability-and-achievement/understanding-o-1a-requirements (last visited June 25, 2018) (click “How do I show that I have received a nationally or internationally recognized award for excellence in my field?”).

^[19] Matter of P‑M‑W‑, ID# 1052433 at 4.

^[20] Matter of D‑M‑O‑, ID# 1066496 at 2–3 (AAO Mar. 29, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/MAR292018_01B2203.pdf (last visited June 28, 2018).

^[21] Matter of C‑K‑, ID# 1223184 at 3 (AAO Apr. 27, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/APR272018_01B2203.pdf (last visited June 14, 2018)

^[22] Matter of P‑B‑M‑, ID# 836834 at 2–4, 2018 Immig. Rptr. LEXIS 663 at *5–*8 (AAO Jan. 25, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/JAN252018_02B2203.pdf (last visited June 28, 2018).

^[23] Matter of T‑J‑S‑K‑, ID# 965338 at 3 (AAO Mar. 15, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/MAR152018_02B2203.pdf (last visited June 28, 2018).

^[24] Matter of K‑G‑, ID# 595327 at 3–4, 2017 Immig. Rptr. LEXIS 22128 at *7–*8 (AAO Nov. 16, 2017), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2017/NOV162017_01B2203.pdf (last visited June 28, 2018).

^[25] Matter of J‑L‑, ID# 800261 at 3, 2018 Immig. Rptr. LEXIS 662 at *7 (AAO Jan. 25, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/JAN252018_01B2203.pdf (last visited June 28, 2018).

^[26] Matter of I‑A‑Z‑, ID# 943303 at 4–5, 2018 Immig. Rptr. LEXIS 672 at *8–*10 (AAO Feb 5, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/FEB052018_01B2203.pdf (last visited June 28, 2018).

^[27] Matter of K‑G‑, ID# 595327 at 5, 2017 Immig. Rptr. LEXIS at *11–*12.

^[28] Matter of J‑Z‑, ID# 879949 at 3, 2018 Immig. Rptr. LEXIS 675 at *7 (AAO Feb. 13, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/FEB132018_01B2203.pdf (last visited June 28, 2018).

^[29] Matter of A‑M‑I‑, ID# 595242 at 4, 2017 Immig. Rptr. LEXIS 22105 at *10 (AAO Sept. 28, 2017), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2017/SEP282017_01B2203.pdf (last visited June 28, 2018).

^[30] Matter of J‑A‑J‑, ID# 1017253 at 4, 2017 Immig. Rptr. LEXIS 25455 at *8–*9 (AAO Nov. 28, 2017), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2017/NOV282017_01B2203.pdf (last visited June 28, 2018).

^[31] Matter of Z‑L‑, ID# 1034540 at 4 (AAO Apr. 4, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/APR042018_01B2203.pdf (last visited June 28, 2018).

^[32] Matter of A‑A‑B‑, ID# 1069683 at 3–4 (AAO Apr. 18, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/APR182018_02B2203.pdf (last visited June 28, 2018).

^[33] Matter of P‑R‑, ID# 995146 at 3–4 (AAO Apr. 3, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/APR032018_01B2203.pdf (last visited June 28, 2018).

^[34] Matter of R‑K‑B‑, ID# 658750 at 4, 2017 Immig. Rptr. LEXIS 22131 at *8–*9 (AAO Nov. 21, 2017), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2017/NOV212017_01B2203.pdf (last visited June 28, 2018).

^[35] Extraordinary Entrepreneurs, supra note 3.

^[36] Matter of R‑K‑B‑, ID# 658750 at 3, 2017 Immig. Rptr. LEXIS at *7–*8.

^[37] Matter of W‑O‑D‑M‑C‑, ID# 1264406 at 5 (AAO, Apr. 26, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/APR262018_01B2203.pdf (last visited June 12, 2018)

^[38] Matter of M‑L‑R‑, ID# 597102 at 3–4, 2018 Immig. Rptr. LEXIS 665 *7–*8 (AAO Jan. 25, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/JAN252018_04B2203.pdf (last visited June 28, 2018).

^[39] Matter of J‑M‑, ID# 825235 at 4, 2018 Immig. Rptr. LEXIS 668 at *10–*11 (AAO Jan. 29, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/JAN292018_01B2203.pdf (last visited June 28, 2018).

^[40] Matter of F‑J‑G‑R‑, ID# 1107933 at 6 (AAO May 8, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/MAY082018_01B2203.pdf (last visited June 13, 2018).

^[41] Extraordinary Entrepreneurs, supra note 3.

^[42] Matter of F‑J‑G‑R‑, ID# 1107933 at 4.

^[43] Matter of K‑K‑J‑, ID# 767393 at 5–6, 2018 Immig. Rptr. LEXIS 652 at *13–*16 (AAO Jan. 11, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/JAN112018_01B2203.pdf (last visited June 28, 2018).

^[44] Matter of I‑V‑S‑, ID# 744549 at 8, 2018 Immig. Rptr. LEXIS 670 at *21–*22 (AAO Feb. 1, 2018), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2018/FEB012018_01B2203.pdf (last visited June 28, 2018).

^[45] Matter of B‑Z‑, ID# 557827 at 6, 2017 Immig. Rptr. LEXIS 22109 at *14 (AAO Oct. 5, 2017), available at https://www.uscis.gov/sites/default/files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2017/OCT052017_02B2203.pdf (last visited June 28, 2018).

^[46] INA § 203(b)(1)(B), 8 U.S.C. § 1153(b)(1)(B).

^[47] 8 C.F.R. § 204.5(i)(3).

^[48] Historic approval rates were generally above 90%. See USCIS I‑140 Statistics, supra note 8.

^[49] See, e.g., Matter of E‑, LLC, ID# 595200 at 4, 2017 Immig. Rptr. LEXIS 22133 at *8–*9 (AAO Oct. 17, 2017), available at https://www.uscis.gov/sites/default/files/err/B3%20-%20Outstanding%20Professors%20and%20Researchers/Decisions_Issued_in_2017/OCT172017_01B3203.pdf (last visited June 28, 2018).

^[50] Id. at 5, 2017 Immig. Rptr. LEXIS at *12.

^[51] Matter of G‑ U.S. Inc., ID# 717521 at 3, 2017 Immig. Rptr. LEXIS 25471 at *6 (AAO Dec. 20, 2017), available at https://www.uscis.gov/sites/default/files/err/B3%20-%20Outstanding%20Professors%20and%20Researchers/Decisions_Issued_in_2017/DEC202017_01B3203.pdf (last visited June 28, 2018).

[52] Matter of E‑, LLC, ID# 595200 at 3, 2017 Immig. Rptr. LEXIS at *6.

^[53] Id.

^[54] Id. at 4, 2017 Immig. Rptr. LEXIS at *8; Matter of G‑ U.S. Inc., ID# 717521 at 4, 2017 Immig. Rptr. LEXIS at *8.

^[55] 8 C.F.R. § 204.5(g)(2).

^[56] Matter of C‑P‑ LLC, ID# 505904 at 3, 2017 Immig. Rptr. LEXIS 15874 at *5–*6 (AAO Aug. 21, 2017), available at https://www.uscis.gov/sites/default/files/err/B3%20-%20Outstanding%20Professors%20and%20Researchers/Decisions_Issued_in_2017/AUG212017_01B3203.pdf (last visited June 28, 2018).

^[57] For a more detailed discussion of ability to pay the offered wage, see 2 Daryl Buffenstein et al., Business Immigration: Law & Practice 524–47 (2d ed. 2017); Immigration Law and Procedure, supra note 4, at § 39.02.