EB-1A: Individuals of Extraordinary Ability

What is the EB-1A Petition?

Key Takeaways from This Page:

1) The EB-1A is generally the fastest yet hardest preference category to qualify a beneficiary under.

2) The EB-1A petitioner must meet at least 3 of the 10 listed regulatory requirements.

3) The EB-1A beneficiary must be shown to be one of that small percentage whom have risen to the top of their respective field. 

4) The EB-1A beneficiary must seek to come to the US to continue in the same or similiar field for which they claim extraordinary ability.

5) Most EB-1A beneficiaries can generally file their I-485 application for a green card at the same time they file their I-140 EB1A petition.

6) Premium Processing is available which will result in some decision within 15 calendar days.
The EB-1A (or referred to as EB-11) petition is a petition type that is found within the first preference category for United States employment-based petitions. It is the highest “priority workers” category for employment-based petition. It can in a way be thought of as the petition class for those individuals who are extremely talented or proficient in their respective field of engagement. Indeed, the statue relating to the EB-1A petition notes specifically that this petition is for “Aliens of Extraordinary Ability” in the sciences, arts, education, business, or athletics. In short, this is the very highest classification category for aliens petitioning for employment-based immigration and corresponding, is the most difficult to achieve in practice.
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What Are The Requirements For the EB-1A petition? 

There are several very specific requirements that a petitioner must meet in order to be qualified as an alien of extraordinary ability. These qualifications are defined by statue (8 U.S.C. § 1153(b)(1)(A)) implementing regulations (8 C.F.R. § 204.5(h)), and USCIS policy and practice (e.g. AFM). The juxtaposition of these different sources of authority can be summarized as follows for the main criteria that must be met to make a prima facia showing of qualification for the EB-1A petition category:

1. Provide evidence that the beneficiary meets at least 3 of the 10 regulatory criteria as set forth in 8 C.F.R. § 204.5(h)(3);

2. Provide evidence that the beneficiary has a level of expertise in their field that indicates that they are “one of that small percentage who have risen to the very top of the field of endeavor” per 8 C.F.R. § 204.5(h)(2);

3. Provide evidence that the beneficiary has sustained national or international acclaim and that the beneficiary’s achievements have been recognized in the field of their expertise per 8 C.F.R. § 204.5(h)(3);

4. Provide evidence that the beneficiary seeks to enter the U.S. to continue to work in the area for which they are claiming extraordinary ability; and

5. Provide evidence that the beneficiary will substantially benefit prospectively the U.S.

What Are The 10 Regulatory Requirements?

As noted, one of the first requirements to make a prima facia showing of eligibility for an EB-1A petition is that the petitioner must illustrate that the beneficiary meets at least 3 of the 10 regulatory criteria as set forth in 8 C.F.R. § 204.5(h)(3). These criteria are as follows:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Documentation of the alien'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;

3. Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation.

4. Evidence of the alien's 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.

5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field

6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media

7. Evidence of the display of the alien's work in the field at artistic exhibitions or showcases

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

9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field

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

Aside from these ten possible criteria, there is an additional “criterion” that notes:

1. “If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

In short, to make a prima facia showing of eligibility to file under the EB-1A preference category, the petitioner must submit sufficient evidence along with the petition to meet at least 3 of the above regulatory criteria.

Why Do People Choose The EB-1A?

Given that the EB-1A petition category is the highest preference category for employment-based immigration petitions and corresponding, the hardest to qualify under in practice, what incentives then do individuals have to apply under this preference category? Quite simply, there is one central quality about the EB-1A petition that makes it quite desirable for individuals and that is that the priority dates for this petition category are generally current, meaning that petitioners do not need to wait any amount of time generally before they can file their I-485; the petition to adjust their status to permanent resident (green card).

But a current priority date is not the only potential benefit. Indeed, one of the other major benefits of applying under this petition category is that the beneficiary may petition on their own behalf. This means the beneficiary does not need to have their current employer petition on their behalf as it otherwise is for the H-1B; nor does a beneficiary even have to have a job in general as there is not specific job requirement for this preference category. As a natural corollary to this latter point, there is no labor certification process that must be conducted either. Finally, USCIS also provides a service for the EB-1A petition that is called “Premium Processing”. By paying an extra fee to Homeland Security in addition to that which is required for “Regular Processing”, a petitioner can have action taken on their petition within 15 calendar days.

In short, with what are generally current priority dates and a premium process service that provides a decision within 15 calendar days, the EB-1A petition provides the quickest avenue for petitioners to acquire an approved I-140 and corresponding ability to file their I-485. As a result, though the standard is the most difficult to meet in most cases, the potential benefits can be significant for anyone with extraordinary ability looking to acquire a green card as quickly and efficiently as possible.  

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Common FAQs

Q. I’m a student currently pursuing my PhD or MS/MA. Am I eligible to apply for the EB-1A?

A. Absolutely. Our attorneys have had a great deal of experience dealing with individuals who may still be completing their studies. For the EB-1A, the question isn’t necessary whether you have a certain level degree but rather whether you are at the top of your field. As a result, someone can be very proficient in their younger research years in terms of publications and accumulating citations at a quick pace and be able to make out a very convincing EB-1A petition. The trick is to ensure that you have the right strategy in place and are playing up the right case attributes and not those elements that USCIS officers tend to find less than convincing evidence.

Q. I’m don’t have a lot of publications yet. Is that a problem?

A. No. Having at least some publications is good but in our experience what really matters is the qualify of those publications, not quantity. Indeed, we have found that individuals who have a lot of publications but not that many citations to their work tend to fare worse than individuals who have a moderate amount of publications but a good deal of citations to their name.

Q. I read your EB-1A info page but I’m still confused on how many regulatory criteria I must meet.

A. Without a major international prize (i.e. Nobel Prize) you must meet at least 3 of the noted 10 categories. Depending on your background, we have several strategies we employ to ensure that we make a forceful argument that you meet at least 3 of them.

Q. I don’t have a science background. Can I still apply under the EB-1A category?

A. Absolutely. The EB-1A category is not restricted to those individuals with only a scientific background. Indeed, our attorneys have had a great deal of experience with many non-scientific background petitioners including artists, musicians, and other performing artists.

Q. I’m thinking of changing my job. Does that matter for the EB-1A?

A. So long as you remain in the same or similar field it should be fine. A job is not required for the EB-1A petition classification.

Q. I’ve heard that I can only apply for the EB-1A if I’m already in the U.S. Is that true?

A. No it is not. You can apply for the I-140 EB-1A outside the U.S. You do not need to be in the U.S. However, to get your Green Card if you are outside the U.S. you will likely need to go through Immigrant Visa Processing at the local consulate or embassy rather than by applying for it via the I-485.

Q. My coworkers have also told me about the EB-1B visa petition. What’s the difference between the EB-1A and the EB-1B?

A. There are several significant differences and similarities. However, the main difference we find clients should be aware of is that the EB-1B petition category requires a qualifying employer sponsor to petition on your behalf while the EB-1A does not; you can self-petition under the EB-1A. In short, you need a job offer and a willing sponsor. There are several other pros and cons when deciding between these two and should be discussed in detail with an attorney.

Q. Can I file the EB-1B and EB-1A at the same time?

A. Yes! You can have both petitions pending and neither should impact the likely success of the other.

Q. My friend got approved through you under the EB-1A. We have similar credentials. Shouldn't it be safe to assume I will get approved as well?

A. Not necessarily. USCIS provides a great deal of discretion to its reviewing officers such that even if objectively you and your friend have similar amounts of publications, review experience, citations, etc. two different officers might adjudicate your cases very differently. This is why it is important for your EB-1A to have an attorney develop a very specific case strategy for your own individual situation.

Q. When can I file my I-485?

A. You can file your I-485 either concurrently with your EB-1A I-140 or after it is approved assuming that your priority date is current.