On Mar 15 2018 by Feige M. Grundman

EB-1: Not Just for Einsteins

By Feige M. Grundman and Steven R. Miller

We’re only a few months into the Trump presidency’s second year, and immigration remains at the forefront of policy and public debate. Recently, however, scrutiny was turned on the First Family itself, with a March 1st article in the Washington Post calling into question First Lady Melania Trump’s qualifications for the permanent residency granted to her in 2001 under the EB-1 immigrant visa program. The piece quoted legislators and lawyers who described EB-1 as “the Einstein visa,” reserved only for the likes of renowned academic researchers, Olympic athletes, and Oscar-winning actors. The article brought this elite means of employment-based immigration into the spotlight, igniting discussion across the news media.

Klasko partner William Stock weighed in on the matter in a March 2nd piece published by Refinery29, noting that this characterization of the EB-1 program paints an unduly restrictive picture of its scope and bar for entry. Yes, a successful EB-1 applicant must show that they have established themselves among the top professionals in their field—but they need not be a household name nor a “capital-G” Genius.

In fact, hypothetically speaking, had Albert Einstein attempted to immigrate under the EB-1 program even a full decade into his career, his success would not have been certain. A follow-up to the Post article published by the New York Times provides an entertaining illustration of this, recounting an exercise in which a blind assessment of Einstein’s 1920 résumé by a group of immigration attorneys yielded a general agreement that the subject individual was a bit underqualified and would make for a rather challenging petition.

Consider that 1920 was just one year before Einstein was granted the Nobel Prize in Physics. This goes to show that there is no clear-cut set of qualifications that make someone an ideal EB-1 candidate. The narrow interpretation of EB-1 requirements promoted in the Post article not only ignores the regulatory realities of the program, it portrays this visa classification not as exclusive, but exclusionary.

It’s the ambiguity and subjectivity of the petition adjudication process, in fact, that opens the door for a broad and varied pool of applicants. Our firm’s EB-1 practice team specializes in preparing creative, robust, and—most importantly—successful petitions for applicants working in a broad range of professions. We’ve gotten EB-1 petitions approved for cancer researchers, brain surgeons, photographers, and dog breeders alike. If there’s a job to be done, and there’s someone who does it extraordinarily well, we can find a path to EB-1. It just might require a little trailblazing.

In the coming weeks, we’ll be running a series of posts covering EB-1 options for accomplished individuals who don’t, at face value, fit the “Einstein Visa” mold. We’ll provide long-term planning guides for those considering application for permanent residence under EB-1 in the future, offering tips on what you can be doing now to set yourself up for success later on, whether you’re a ballet dancer or a rocket scientist.

The whole point of the EB-1 program is to bring the brightest and the best to the United States. But it’s clear to anyone who looks that genius isn’t sequestered in the ivory tower of academia. Attracting and retaining the world’s top talent should be a priority regardless of profession. You don’t have to be Einstein to know that.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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