As we mentioned in previous articles, when applying for immigration status under the EB-1 category, it is up to the petitioner to make your case. This is the latest on the assessment criteria employed by the USCIS.
Under the approach based on Kazarian v. USCIS, the USCIS first considers the evidence submitted in support of the petition against all of the statutory eligibility criteria. The USCIS determines whether the evidence establishes that the petitioner meets the minimum number of listed requirements set forth under the law. Extraordinary Ability petitions must meet three out of a list of ten criteria; Outstanding Professors petitions must meet two out of a list of six criteria. Prior to Kazarian, the analysis ended with a determination that the applicant's qualifications met the proper number of criteria. If these were met, the case likely would be approved.
Now, under the Kazarian decision, the USCIS applies a second step of a "final merits determination." This requires another review of all evidence in its totality to determine if the petitioner meets the overall category requirements. Essentially, the evidence is considered as a whole to determine if the applicant is sufficiently "extraordinary" or "outstanding" for an EB1 approval in either classification.
Therefore, it is very important to remember that the EB-1 should be looked at from two different angles.
- First, the petitioner has to ensure that evidence is provided for the three (or two, in the case of Outstanding Professors) items specified as part of the minimum criteria.
- Second, it is important that the petitioner makes his or her case by looking at how “extraordinary” his or her abilities are. This means that evidence will have to be provided to convince the USCIS that the abilities of the petitioner extend beyond the three main items indicated as minimum requirements. In other words, the petitioner needs to make his or her case for “extraordinary ability” by collecting evidence which tells of his or her exceptional talent in his or her particular field.
The definition of “extraordinary ability” covers people working in academia, science and the arts. This includes people who work in, for example, the fashion industry or the entertainment business. In our next blog, we will discuss on a number of successful petitions submitted by people of different professions.
Have further questions or need paralegal advice? If so, feel free to contact us at myGreencard.com or ask your local immigration attorney for more information. Our paralegal service provides high quality advice on how to fill out the petition forms and provide all required documentation. We look forward to helping you!