On May 28 2019 by Feige M. Grundman

To Extraordinary and Beyond: Strategies for EB-1 Success

By Feige Grundman and Jonathan Madara

“Do I qualify for EB-1?” is among the most complex questions we are asked at Klasko Immigration Law Partners. As the Administrative Appeals Office (AAO) often reminds petitioners, the EB-1A Extraordinary Ability category is “…a highly restrictive visa classification, intended for individuals already at the top of their respective fields, rather than for individuals progressing toward the top. USCIS has long held that even athletes performing at the major league level do not automatically meet the ‘extraordinary ability’ standard.” Given the tremendous uncertainty surrounding the current immigration climate in the United States, it is no wonder that more individuals than ever before are seeking to achieve recognition as having “…a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of their field of endeavor.” Indeed, EB-1A adjudications by the AAO increased to 137 cases in Fiscal Year 2018, a more than 147% increase over FY 2017 and over 157% more than FY 2016.

There is significant incentive for an individual to self-sponsor in the EB-1 preference category. A successful Extraordinary Ability petition can dramatically advance a petitioner’s priority date relative to other employment-based immigrant categories for subsequent green card petition filings. As of March 2019, the difference between the EB-2 and EB-1 categories was more than a year for an individual from mainland China and nearly eight years for an Indian foreign national. The benefits of success are potentially life-changing; why not file and see what happens?

What happens, it appears, is often bad. According to the AAO, more than 90% of the Extraordinary Ability denial appeals it reviewed in 2018 were dismissed, a significant increase over the already-formidable dismissal rates of 82% in 2017 and 78% in 2016. While having a negative decision in the immigration record does not preclude subsequent EB-1 petition filings, it does create a benchmark reference against which future petitions may very well be judged by USCIS. These denial statistics are indicative of the ever-moving target that is the EB-1 adjudicatory standard and show that, when it comes to preparing an EB-1 petition, experience matters—it should not be a Do-It-Yourself endeavor.

One of the ways to stay on top of developing trends in EB-1 adjudications is monitoring publicly-available AAO decisions to discern patterns in USCIS’ reasoning. These non-precedent decisions do not legally bind USCIS in prospective cases and are therefore often undervalued. However, they provide a wealth of insight into the underlying reasoning on which these petitions are adjudged. Importantly, the range of endeavors in which one can petition for recognition as extraordinary is virtually unlimited, from international beach volleyball to nephrology research. However, warrior monks and legal scholars alike face similar and substantial challenges to success. While the facts of each case are distinct, the broader patterns by which the AAO disposes of petitions provides opportunity to glean important information that can inform the structure of future petitions.

For example, we have found that the AAO has made it abundantly clear that statistics in the absence of context are a sure-fire route to dismissal. For example, despite a postdoctoral researcher objectively demonstrating a relatively strong record of scholarly authorship—13 scientific articles with 350 professional citations—the AAO nevertheless found that:

“In this case, the Petitioner has not demonstrated that the citations to his work, considered both individually and collectively, are commensurate with contributions ‘of major significance in the field.’”

Establishing that a petitioner’s original contributions have been of major significance is a frequently-encountered stumbling block in Extraordinary Ability cases, with the AAO often opining that:

“While the selection of the Petitioner’s articles in professional journals or at conference proceedings verifies the originality of his work, it does not necessarily reflect that his research is considered of major significance

We have found that detailed contextualization and precise clarification well beyond the basic demonstration that a petitioner’s work has been recognized by others in the field more reliably leads to positive decisions. Sustained dialogue between our EB-1 team and our clients provides a level of understanding that allows us to detail how our clients’ professional achievements distinguish them in their field of endeavor. But it’s not enough to meet the plain language of the regulatory criteria—a formidable final merits determination must subsequently be satisfied. It’s in this inherently subjective analysis that context and narrative become vital.

Named for the case that set this precedent, the Kazarian analysis is the downfall of many EB-1 petitions. But AAO discussion of Kazarian denials can often confuse rather than clarify. How, for example, did the AAO find that a postdoctoral fellow failed to demonstrate “sustained national or international acclaim at the very top of the field” despite an objective record of scholarly accomplishment that included 21 articles (four appearing in the preeminent Nature), more than 730 citations, and more than 40 invitations to perform peer review service for scholarly journals?

In analyzing the AAO’s 2018 decisions, we’ve determined that detailed testimonial support describing and explaining the impact of a petitioner’s work on the field, and not solely reciting objective measures and statutory criteria, is the key to passing the Kazarian test. For example, with regard to this postdoctoral fellow’s service as judge of the work of others, the AAO writes:

He did not show, for example, how the number of reviews he conducted or the number of journals he served compares to others at the top of the field.

This criticism can be avoided by having an authoritative voice from the field confirm that this is a significant degree of review activity. Quite simply, cogent, illustrative testimonial support is the secret ingredient that makes or breaks an Extraordinary Ability petition. In fact, we have found sustained success with many professionals in industry and academia with far fewer publications and citations than the postdoctoral researcher noted above. It’s not about numbers, it’s about nuance.

While preparing an EB-1 Extraordinary Ability petition is formidable, it is by no means impossible. These petitions do not require a Nobel Prize or Grammy Award, but they do require extraordinary preparation and attention to detail. Last year’s AAO decisions are a useful weathervane that shows the wind is blowing toward ever-harsher adjudications. Taking a measured strategic approach to EB-1 petition preparation is now more important than ever.

 

Do you have what it takes to pursue an EB-1 or an O-1 petition? Schedule a consultation to discuss with the EB-1 team. 

 

This article is part of a series analyzing AAO decisions on various employment-based visa classifications in 2018. Jonathan Madara is a Paralegal at Klasko Immigration Law Partners, and Feige Grundman is a Senior Associate at the firm with expertise in all areas of employment-based immigration law, and specializing in EB-1/O-1/NIW cases.

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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