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On September 12, 2023, U.S. Citizenship and Immigration Services (USCIS) updated its official policy manual chapters on employment-based first-preference (EB-1) immigrant petitions in the Extraordinary Ability and Outstanding Professor and Researcher classifications.

Quick Hits

  • The updated policy manual includes new examples of the types of evidence in each criterion used to determine eligibility for EB-1 petitions in the Extraordinary Ability and Outstanding Professor and Researcher classifications.
  • USCIS’s expanded guidance includes several examples and considerations specific to STEM occupations.
  • USCIS has clarified how officers consider the totality of the evidence during the final merits determination step, including evaluating comparable evidence that may not fit into a specific criterion of evidence.

USCIS utilizes a two-step process when reviewing evidence in support of EB-1 Extraordinary Ability and Outstanding Professor and Researcher petitions. First, USCIS assesses whether evidence meets the regulatory criteria for the classification sought, and then the agency issues a final merits determination after evaluating the totality of the evidence to determine if the beneficiary is eligible.

In the updated policy manual, USCIS provides new examples of supporting evidence, including examples that relate to science, technology, engineering, or mathematics (STEM) occupations. USCIS also elaborates upon the considerations officers may make when analyzing different types of evidence and gives examples of how these considerations may be applied within the different criteria.

Specific to step one of the Extraordinary Ability classification, USCIS now provides expanded guidance and examples of comparable evidence a petitioner may submit if the regulatory criteria do not readily apply to the beneficiary’s occupation. The new guidance states that a petitioner may demonstrate whether a criterion is applicable to the occupation with “detailed, specific, and credible” information, and explains that “a criterion need not be entirely inapplicable to the person’s occupation” for an officer to consider comparable evidence.

In step two of both classifications, USCIS now describes how an officer will “consider any potentially relevant evidence” when considering the petition in its entirety, regardless of whether the evidence fits within a specific regulatory criterion or was presented by the petitioner as comparable evidence. USCIS further explains that “evidence may weigh more favorably on its own” or become persuasive when considered with other evidence. According to USCIS, petitioners should “provide sufficient context . . . to demonstrate that the evidence meets the relevant criteria.”

The updates to step two also include several examples of scenarios in which the totality of the evidence may help officers evaluate the quality of evidence and determine whether the beneficiary is eligible, namely whether the beneficiary is among “the small percentage at the top of the field” and “has sustained national or international acclaim” (if seeking classification as an individual of extraordinary ability), or whether the beneficiary “is internationally recognized as outstanding in a specific academic area” (if seeking classification as an outstanding professor or researcher).

Next Steps

Employers and self-petitioners planning to file EB-1 petitions in these classifications may want to review the additional examples provided by USCIS and the considerations made by officers when evaluating evidence. For some STEM occupations or occupations that do not have traditional evidence for the regulatory criteria, employers and self-petitioners may want to consider USCIS’s examples of comparable evidence and its clarifications surrounding an officer’s review of the totality of evidence.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to USCIS’s policy manual and will provide updates on the Immigration blog as additional information becomes available.

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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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