Alien with Extraordinary Ability

An alien with an extraordinary ability in the sciences, arts, education, business or athletics can petition for United States immigration benefits pursuant to the regulation at 8 C.F.R. 204.5(h)(3).  The spouse and/or children of an alien with an extraordinary ability can also gain United States immigration benefits derivatively through the alien of extraordinary ability’s successful petition.  Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of that field of endeavor. An that alien can establish sustained national or international acclaim through evidence of a one time achievement (that is, a major, internationally recognized award) can potentially satisfy this requirement.  What constitutes a “sustained acclaim” and a “major, internationally recognized award” are discretionary issues which are often subject to the interpretation of the reviewing officer. Great advocacy is a necessity to properly argue these issues.

Absent the alien’s receipt of such an award, the regulation outlines ten criteria, at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary ability. The ten criteria are as follows:

1.  Evidence of receipt of a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor;

2.   Evidence of membership in associations which require outstanding achievements of their members, as judged by recognized experts

3.    Published material in professional or major trade publications or major media about the alien’s work;

4.   Evidence of participation on a panel, or individually, as a judge of the work of others in the field;

5.  Evidence of original scientific, scholarly, artistic, or business related contributions of major significance;

6.  Evidence of authorship of scholarly articles in professional journals or other major media;

7.  Evidence of the display of the alien’s work in exhibitions or showcases;

8.    Evidence that the alien has performed in a leading or critical role for organizations or establishments having a distinguished reputation;

9.    Evidence of high salary or high renumeration in relation to others in the field; or

10.    Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

The beneficiary (petitioner) also has the ability to submit comparable evidence to establish his or her eligibility if the above standards do not readily apply to the petitioner’s occupation.  General assertions that the above 10 criteria do not apply are largely discounted by the officer reviewing the petition.

The standard of proof is by a preponderance of the evidence (Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). Thus, if the beneficiary (petitioner) submits relevant, probative, and credible evidence that leads USCIS to believe the claim is more likely than not or probably true, the petitioner has satisfied the burden of proof (Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989).  In an ideal world, a petitioner (beneficiary) who can establish sustained national or international acclaim through evidence of a one time achievement (that is, a major, internationally recognized award) or who satisfies at least 3 or the 10 criteria by a preponderance of the evidence should always succeed.  However, it is not that simple based upon how Courts have interpreted these requirements.

In 2010 the U.S. Court of Appeals for the 9th Circuit in Kazarian v. USCIS (596 F. 3d 1115 (9th Circ. 2010) upheld the denial of a petition filed under this classification but took issue with the AAO’s evaluation of the evidence submitted to meet a given evidentiary criterion. Specifically, the Court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements beyond those set forth in the regulations at 8 C.F.R. section 204.5(h)(3)(iv) and (vi). If a beneficiary (petitioner) has submitted the requisite evidence, the USCIS determines whether the level of evidence demonstrates both a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of their field of endeavor. 8 C.F.R. section 204.5(h)(2), and that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. 8 C.F.R. section 204.5(h)(3). Only aliens whose achievements have garnered sustained national or international acclaim are eligible for an extraordinary ability visa. 8 U.S.C. section 1153(b)(1)(A)(i). Id at 1119-1120. Thus, Kazarian sets forth a 2 part approach where the evidence is first counted and then considered in the context of a final merits determination. In reviewing Service Center decisions, the AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a new analysis if the director reached his or her conclusion by using a one step analysis rather than the 2 step analysis dictated by the Kazarian Court.  Thus, Kazarian really gives wide discretion to grant or deny the petition to the officer assigned to review the petition as long as the 2 step analysis is followed.

Common reasons why petitioners (beneficiaries) fail to substantiate their claim include: the burden of proof wasn’t met, the acclaim wasn’t sustained, the degree of the proofs submitted did not place the petitioner (beneficiary) in the small percentage who have risen to the very top of that field of endeavor, the one time award wasn’t viewed as internationally recognized or major enough, the petitioner (beneficiary) failed to prove at least 3 of the 10 criteria.  A petitioner (beneficiary) who does not prevail may be able to prevail in other areas such as National Interest Waivers, H1-B, etc.  Again, it is very important to seek legal counsel and representation with an experienced immigration lawyer to properly advise you as to your own individual situation so that all your options can be explored.

Substantial, accepted documentation in support of the petition must be submitted to prevail.  Sources of documentation such as wikipedia and personal blogs are not viewed as reliable and are given little, if any, weight.  Letters on behalf of the alien are accepted,  and are often persuasive when the source of the letter is reliable and persuasive.

Neither an offer of employment nor labor certification is required for this classification.  However, there must be clear evidence that the alien is coming (or remaining) in the United States to continue work in the area of the alien’s expertise.  Evidence of this can include letters from employers or prospective employers, employment contracts, or a statement from the beneficiary detailing plans on who he or she intends to continue his or her work in the United States.

For these types of cases, it is always necessary to hire an experienced immigration lawyer to effectively present these types of cases.