On Sep 21 2018 by Staff
Evaluating EB-1A Extraordinary Ability as an Alternative to EB-5
The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
The EB-1A Extraordinary Ability classification is a path to permanent residency for individuals who stand among the small percentage of professionals working at the very top of their field, regardless of what that field might be. Business, arts, education, the sciences, athletics—there’s a place for every specialist in EB-1A provided they can prove through testimonial and documentary evidence that they are recognized for their achievements and have sustained a high level of national or international acclaim.
Even if the plain language of the EB-1A regulatory requirements don’t have much relevance to an applicant’s field, the applicant is free to submit comparable evidence of achievement and acclaim that is relevant to their field. It’s this comparable evidence clause in the regulations that opens EB-1A up to individuals whose accomplishments don’t fit squarely with the regulatory language. Applicants with extraordinary ability in business, for example, are in a good position to leverage this comparable evidence clause, as they may not necessarily meet the more academically-focused criteria.
Our firm has had great success preparing EB-1A Extraordinary Ability petitions for startup entrepreneurs and established executives alike. Many potential EB-5 applicants with a strong business background may want to explore EB-1A as an alternative to investment-based immigration, provided they have a record of success and acclaim in their industry that can be supported by documentary evidence. Our firm has developed an approach to preparing EB-1A petitions for business professionals that couples quantifying financial success with a careful presentation of the industry-wide impact of their work, tracking trends in product development across competitors to show how the often-proprietary business contributions of our clients have influenced broader practices and thinking to clear the regulatory bar for EB-1A classification.
Even so, when applying as an individual of extraordinary ability—be it in a business, science, or otherwise —meeting the plain language of the regulatory criteria is not enough. Once applicants have shown that they satisfy the minimum three criteria, the petitions are subjected to a final merits analysis in which the adjudicator makes a relatively subjective determination on whether or not the evidence in sum demonstrates a level of achievement that merits EB-1A classification. Therefore, it’s important to consider the strength of one’s career record as a whole beyond the face-value scope of the regulatory criteria.
The crux of most successful EB-1A petitions is a robust set of testimonial evidence from unbiased experts in the applicant’s field. When deciding to pursue EB-1A, applicants should consider their professional networks and whether they would be able to attain the endorsement of demonstrably prominent figures in their professional specializations both at home and abroad. While a minimum of national acclaim is required by the regulations, testimony from international peers—especially U.S. peers—can only bolster a petition’s strength.
As EB-1A is a classification that relies just as much on documentary evidence as it does on testimonial letters of support, the burden for Chinese applicants is heavy when it comes to documenting their accomplishments, specifically when it comes to translation. Any non-English document submitted to the USCIS must be accompanied by a certified translation of the document in full. Translations must be prepared in a way that mirrors the structure of the original and must include all text on the page. Selective translation of documents is likely to draw a request for additional evidence seeking more complete translations.
Unless the applicant is a Nobel laureate, there is no such thing as a quick and easy EB-1A petition. The preparation of such a filing involves months of high-level communication and cooperation with a legal team. Here, Chinese nationals might run up against language and cultural barriers. It’s difficult enough to explain the particulars of a highly-specialized field. It’s even harder to do so when you don’t speak the same language as the team preparing your petition. This is not an unclearable hurdle, but the extra time and effort likely required to collaborate across languages should be considered. At Klasko, we have staff capable of meeting interpretation and translation needs for clients who do not speak English.
On the cultural front, there’s the challenge of communicating the markers of achievement in the Chinese business, artistic, or scientific worlds to an adjudicator unfamiliar with the nuances of these realms. While the USCIS officer is likely to recognize that publication of a first-author paper in the English-language journal Nature is a major achievement or that coverage of one’s work on CNN is a marker of significance, they’re not likely to be aware of even the biggest names in Chinese media, academics, or business. It’s extremely important that Chinese applicants are able to back up any assertion of the prominence of an institution, organization, or publication with supporting evidence that resolutely confirms claims of significance.
Overall, it should be noted that no two EB-1A Extraordinary Ability petitions are the same. The level and nature of scrutiny to which these petitions are subjected means that the success of one EB-1A petition does not necessarily guarantee the success of a similar one. Each will present its own challenges and opportunities that require a tailored approach and a significant expenditure of effort in preparation.
At Klasko, we have a team of Attorneys, Technical Writers, and an Editor specifically dedicated to preparing and filing EB-1A petitions so that all challenges can be met with a creative, agile approach and a keen attention to detail. Other firms will spread their resources thin by moving EB-1A cases through the standard paralegal-attorney pipeline, distributing the time-intensive work of drafting petition support letters, compiling corroborating evidence, and preparing legal arguments among staff already focused on myriad other petition types and processes. By coupling the legal expertise of our Attorneys with the skill and broad subject knowledge of our EB-1 writing team, we’re able to deliver a package of testimonial and documentary evidence based on a focused and measured approach implemented by a specialized team with the institutional resources called for by this complex visa classification.
When you retain our team to prepare your EB-1A Extraordinary Ability petition, we will initiate a multi-step protocol that starts with an Input Call and Questionnaire that will help us to gain a comprehensive understanding of your work and career accomplishments. We will draft the petition support letters in house for signature by a carefully-considered roster of referees so that their contents address all the right points and don’t bring up any of the wrong ones. As mentioned, any EB-1A process requires a fair bit of time and effort on the applicant’s part to compile evidence and provide information on their background – our team will work with you to guide those efforts to ensure that your valuable time is not wasted preparing anything that will not ultimately strengthen your petition.
With the ultimately subjective nature of EB-1A adjudication, this classification is among the more “human interest” visa application processes. A successful EB-1A petition must paint a compelling picture that persuades the adjudicator not just on a legal level, but on a personal level as well. The Klasko EB-1 team has achieved the level of success it has by keeping this reality in focus. We take pride in all the EB-1A petitions we prepare as each is not just a collection of facts, but a reflection of the applicant’s life and the numerous people who worked together to make each petition possible.
This blog is part of series evaluating three visa options. You can read the announcement and other blogs in the series here:
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.
© 2018 Klasko Immigration Law Partners, LLP. All rights reserved. Information may not be reproduced, displayed, modified or distributed without the express prior written permission of Klasko Immigration Law Partners, LLP. For permission, contact email@example.com.