USCIS Updates Policy Manual to Clarify Types of Evidence That May Be Considered for EB-1A Eligibility

Quick Hits

• USCIS has built upon a prior policy update to clarify the types of evidence that may be used when USCIS determines EB-1A extraordinary ability eligibility.
• The EB-1A immigrant visa category is available to foreign nationals in the sciences, arts, education, business, or athletics who demonstrate extraordinary ability through sustained national or international acclaim.

The EB-1A immigrant visa category, which bypasses the PERM labor market test, is available to foreign nationals who demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. To qualify, a foreign national must meet at least three of ten regulatory criteria.

Highlights of the updates to the guidance include the following:

• USCIS may consider receipt of team awards under the criterion for “lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.”
• USCIS will consider past memberships under the criterion for membership in associations in the field that demand outstanding achievement of their members.
• The guidance removes language suggesting that published material about the beneficiary in professional or major trade publications or other major media must demonstrate the value of the person’s work and contributions.
• The guidance explains that while the dictionary definition of “exhibition” includes public showings that are non-artistic, the relevant “regulation expressly modifies that term with ‘artistic,’ such that USCIS will only consider non-artistic exhibitions as part of a properly supported claim of comparable evidence.”

Key Takeaways

Overall, the policy changes broaden the types of evidence that may be considered in support of a petition for EB-1A extraordinary ability classification. Due to increased challenges with PERM labor market tests, employers may want to consider the extraordinary ability category and other categories that bypass PERM for their most talented employees.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.

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