Bloomberg Law Practical Guidance: Employment, Professional Perspective – USCIS EB-1A Evidence Requirement Updates

The following was published in Bloomberg Law Practical Guidance (Nov. 9, 2023) and was written by Erickson Immigration Group senior managing attorney Christina Haines, and associate attorneys Caline Shamiyeh and Sebastian Zavala.

USCIS has announced a USCIS Policy Manual update, effective SEP 12, 2023, that clarifies the types of evidence that USCIS evaluates to determine eligibility for “extraordinary ability” (EB-1A) and “outstanding professor or researcher” (EB-1B) employment-based immigrant visa classifications. This alert will focus on the updates to USCIS policy regarding EB-1A extraordinary ability immigrant petitions specifically.

This has potential far-reaching impacts as the EB-1A can be self-petitioned with no employer sponsor required, and it is the fastest way to a green card through the employment-based green card process.

Background

The EB-1A immigrant visa is reserved for individuals of extraordinary ability in the sciences, arts, education, business or athletics. While no job offer or certification from the U.S. Department of Labor is required, applicants for EB-1 must show sustained national or international acclaim in their field of expertise. Additionally, they must seek to enter the U.S. to continue work in their area of extraordinary ability, and they must show that their entry to the U.S. will substantially benefit the U.S. in the future. The applicant must satisfy at least 3 of 10 regulatory criteria set out in the regulation at 8 C.F.R.§ 204.5(h)(3).

Updates to the USCIS Policy Manual

The update adds clarifying guidance describing examples of relevant evidence, with a focus on science, technology, engineering, and mathematics (STEM) fields, as well as considerations for evaluating such evidence. The updates to the Policy Manual are designed to assist petitioners in submitting appropriate evidence to establish the beneficiary’s eligibility.

Instead of an Appendix, USCIS has moved the EB-1 evidentiary information into the main Policy Manual in Volume 6, Part F, Chapter 2.

Several of the criteria now include examples of evidence as well as a “considerations” section explaining how the USCIS officer should evaluate the evidence.

Key Changes

• Lesser Nationally or Internationally Recognized Prizes or Awards: The Policy Manual indicates that USCIS will now consider additional types of awards such as: some student, scholastic, and doctoral dissertation awards; some youth, amateur, and early-career awards; and some awards for presentations at conferences. Notably, for athletes, USCIS will now consider awards presented to new players or “rookies” in major sports leagues, whereas previously early career awards were not considered. This is the only update that pertains to athletes specifically.

• Membership in Associations: The Policy Manual indicates that even if “general level” membership in an organization for engineering and technology professionals would not be sufficient, a higher “fellow level” membership may be considered under certain circumstances.

• Published Material about the Beneficiary: The Policy Manual adds language indicating that the published material “must demonstrate the value of the person’s work and contributions”. Additionally, USCIS will not accept “seemingly objective content about the beneficiary in major print publications that the beneficiary or the beneficiary’s employer paid for.” On the other hand, the Policy Manual clarifies for the first time that USCIS is willing to consider published material that discusses work/research by a team, provided that the material mentions the Beneficiary or other evidence in the record documents the Beneficiary’s significant role in the work/research of the team. This is a significant change for researchers in the science and technology field, where collaboration is often part of major breakthroughs.

• Judge of the Work of Others: The Policy Manual expands the type of evidence USCIS will consider. Notably, it confirms that peer reviewing abstracts or papers submitted for presentation at scholarly conferences counts as judging. The Policy Manual also confirms that peer reviewing for government research funding programs counts as judging.

• Original Contributions of Major Significance to the Field: The Policy Manual now states that evidence that the Beneficiary’s work was funded, patented, or published is not enough on its own to demonstrate that the work is of major significance. Regarding patents, the Policy Manual indicates that while granted patents may be evidence of an “original” contribution, they are not enough to show significance; applicants need to show that they developed a patented technology that “has attracted significant attention or commercialization.”

• Authorship of Scholarly Articles: The Policy Manual confirms that published conference presentations at nationally or internationally recognized conferences can be considered — i.e., not just articles published in journals.

• Critical/Leading Roles for Distinguished Organizations: USCIS has added to the Policy Manual that for academic departments, programs, and institutions, officers may consider national rankings and receipt of government research grants as positive factors in determining whether they qualify as distinguished organizations. For a start-up, officers may consider evidence that the business has received significant funding from government entities, VC funds, angel investors, etc. as positive factors.

• High Salary: The Policy Manual has been updated to clarify that future salary can be considered, even though the regulation uses the words “has commanded” in the past tense. This is a major change, as previously USCIS would typically only take into consideration past salary as evidenced by reliable evidence such as a W-2 form.

• Comparable Evidence: USCIS has added to the Policy Manual that presentations at major trade shows can serve as comparable evidence to authorship of scholarly articles for individuals who are not in academia. For entrepreneurs, USCIS indicates that a person’s highly valued equity holdings in a start-up can serve as comparable evidence of high salary.

• O-1 Visa Holders: The Policy Manual now specifies that in the event USCIS is denying an EB-1 immigrant petition for someone who already holds O-1 nonimmigrant status as an individual of extraordinary ability, then the USCIS officer should provide a brief discussion as to why, notwithstanding the previous O-1 approval, the Beneficiary is ineligible for EB-1. This change was sparked by court cases noting the similarities between the O-1 and EB-1 criteria.

Erickson Insights

This policy update adds specific examples which will likely be favorable to individuals working in STEM fields and in academia, as well as start-up founders and entrepreneurs. Individuals in the arts and athletics should not expect to see any significant benefit from these changes.

While the examples in the Policy Manual may be helpful, providing more transparency and attempting to address ambiguities, some USCIS Officers may strictly adhere to the examples provided and only consider those specific types of evidence, which are more restrictive than what is required under the regulations. This is especially true for the “critical or leading roles” criterion, where the examples in the Policy Manual are focused on senior researchers, principal investigators, and start-up founders.

USCIS appears to continue to be moving in the direction of giving less weight to expert recommendation letters and instead requiring corroborating evidence beyond what has historically been required in the case law. Additionally, the Policy Manual update does not modernize the types of evidence for EB-1. For example, it does not provide any new guidance about online media or social media.

Please note that the information in this alert will not substitute case-by-case legal analysis conducted by the legal team.