EB1: Immigrating as an Individual of Extraordinary Ability

A few individuals can immigrate to the United States because they have achieved extraordinary ability in their field of endeavor. These individuals do not need to have a petitioner in the United States. These individuals would be immigrating in the “EB1” visa category.

For immigration purposes, “extraordinary ability” is defined as being “one of that small percentage [of individuals] who have risen to the very top of their field of endeavor.”

Proving that one has risen to the top of their field of endeavor is not easy. The CIS regulation provide some guidance in proving one’s status as an individual of extraordinary ability:

One way of proving that one is an individual of extraordinary ability is to show that one has obtained a one–time major, internationally recognized award, such as the “Nobel Prize.” Merely winning an international award is not enough, as the award must be an major one. Winning an Olympic Gold medal would probably qualify, but winning a Gold medal in international competition at the Pan–American games might not.

One can also attempt to establish that one is an individual of extraordinary ability by meeting at least three of the following criteria (merely meeting three is usually not enough):

• receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
• 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; Membership in associations where there is no requirement of outstanding achievements would not qualify.
• Published material about the individual in professional or major trade publications or other major media, relating to the individual’s work in the field for which classification is sought.
• Participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
• Original scientific, scholarly, artistic, athletic, or business–related contributions of major significance in the field;
• Authorship of scholarly articles in the field, in professional or major trade publications or other major media;
• Display of the individual’s work in the field at artistic exhibitions or showcases;
• Performing in a leading or critical role for organizations or establishments that have a distinguished reputation;
• Commanding 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.

The standards applied by USCIS to these “extraordinary ability” categories are very stringent. For example, the Board of Immigration appeals has stated that “the fact that an athlete may be performing at the so called ‘major-league’ level does not mean that he or she automatically meets the extraordinary ability standard,” because the category is reserved only for those who are at the very top of their field.

In addition to proving that he/she is an individual of extraordinary ability, the individual must also prove that he/she will continue working in their area of expertise, and that their work will substantially benefit the US.

These are extremely complex cases with myriad of pitfalls. You should only proceed with the assistance of an attorney. Contact us to get started.