Alien of extraordinary ability

Last updated

Alien of extraordinary ability is an alien classification by United States Citizenship and Immigration Services. The United States may grant a priority visa to an alien who is able to demonstrate "extraordinary ability in the sciences, arts, education, business, or athletics" or through some other extraordinary career achievements.

Contents

The immigrant version of the classification (EB-1A), which grants permanent residency, additionally requires the alien to demonstrate "sustained national or international acclaim", "achievements recognized by others in the field of expertise", and "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor". It has the important advantage that the petitioner can self sponsor rather than relying on an employer sponsor. Depending on country of origin, this category may also allow one to bypass waiting lists of many years.

It is known colloquially as a "genius visa" or "artists' visa" (many of the recipients are artists). [1]

It can be granted on immigrant or non-immigrant basis. The immigrant version is known as EB-1A (officially, E11 or E16 classification [2] ), and the non-immigrant version is known as O-1.

Distinction between EB-1A and O-1

The immigrant version (EB-1A) is known to have a much more stringent standard than the non-immigrant version. [3] In some cases an EB-1A petition may be filed on behalf of an alien who was previously granted the O-1, alien of extraordinary ability non-immigrant classification. Though the prior approval of an O-1 petition on behalf of the alien may be a relevant consideration in adjudicating the EB-1A petition, the adjudicator is not bound by the fact that the alien was previously accorded the O-1 classification if the facts do not support approval of the EB-1A petition; eligibility as an O-1 nonimmigrant does not automatically establish eligibility under the EB-1A criteria for extraordinary ability. Each petition is separate and independent and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions. Moreover, the O-1 non-immigrant classification includes different standards and criteria for aliens in the arts, athletics, and the motion picture industry. In such cases, there would be nothing inconsistent about finding that an alien in the arts has “distinction” according to the non-immigrant criteria, but not “national or international acclaim” according to the immigrant criteria. [3]

Immigrant EB-1A visa (E11 / E16)

Description

An alien meeting the extraordinary ability criteria may be eligible for an employment-based, first-preference EB-1 immigrant visa. An alien must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Achievements must be recognized through extensive documentation. No offer of employment is required. [4]

An alien must provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal), or meet 3 of 10 criteria below and demonstrate that he or she has: [3]

E11 classification and E16 classification are the same except E11 is issued for people currently living outside the United States, whereas E16 is issued to people who currently reside in the United States and would like to adjust their immigration status. [5]

Eligibility criteria

The alien must prove eligibility by meeting the requirement in a two-step analysis, according to a standard adopted by USCIS since 2010 (see Kazarian v. USCIS).

Part One: Initial Evidence

In Part One, the alien must meet three out of the ten listed criteria below to prove extraordinary ability in the field: [3]

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of membership in associations in the field, which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence of judging the work of others, either individually or on a panel
  • Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that work has been displayed at artistic exhibitions or showcases
  • Evidence of performance of a leading or critical role in distinguished organizations
  • Evidence that of high salary or other significantly high remuneration in relation to others in the field
  • Evidence of commercial successes in the performing arts

In addition to the above, the regulations add the following flexibility: "If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility." [6]

Part Two: Final Merits Determination

Meeting the minimum requirement of providing evidence relating to at least three criteria does not, in itself, establish that the alien in fact meets the requirements for classification as an alien of extraordinary ability under section 203(b)(1)(A) of the INA. In making this determination, the court in Kazarian v. USCIS recognized that the quality of the evidence, such as whether the judging responsibilities were internal and whether the scholarly articles (if pertinent to the occupation) are cited, is an appropriate consideration in the final merits determination. In addition, the alien's performance at the so-called major-league level does not automatically establish that he or she meets the extraordinary ability standards. See Matter of Price, 20 I&N, Dec. 3241 citing to 56 FR 60899 (Nov. 29, 1991). Finally, Congress intended that in the absence of a one-time achievement, an alien could qualify for the classification based on a "career of acclaimed work." H.R. Rep. No. 101-723, 59 (Sept. 19, 1990).[ citation needed ]

In Part Two of the analysis in each case, the adjudicator must consider all of the evidence to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has:

  • A level of expertise indicating that the individual is "one of that small percentage who have risen to the very top of the field of endeavor." 8 CFR 204.5(h)(2); and
  • Sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. 8 CFR 204.5(h)(3).

Advantages

The EB-1A, unlike its non-immigrant counterpart, provides a pathway to citizenship. Unlike most employment based pathways to citizenship, if someone can qualify as an EB-1A alien of extraordinary ability, that person can self sponsor without the need for their employer to sponsor them. A green card can be granted on the basis of an EB-1A (but not an O-1) approval. Once the green card is granted, the standard waiting period of five years--which applies to immigrants in many categories--is generally required before applying for citizenship.

Appeals process

Although the EB-1A application is an administrative process, a denial can be appealed through the US federal court system. Another ice dancer, Christina Carreira, applied for EB-1A but was denied. She appealed that denial through the US federal court system. Carreira argued in the appeal that the criteria used in her case were unreasonable because they were so restrictive that, were they to be applied generally, they would allow no athletes at all to qualify as aliens of extraordinary ability. After winning her US green card, Carreira competed for the US and won a bronze medal at the 2022 Four Continents Figure Skating Championships. [7] [8] [9]

Non-immigrant O-1 visa

Description

The O1 nonimmigrant visa is for an alien who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. [10]

Eligibility Criteria

Eligibility Criteria for O-1A visa should include an evidence that the beneficiary has received a major award, such as a Nobel Prize, or evidence of at least three of the following:

List of notable recipients

EB-1A (E11/E16)

O-1

Related Research Articles

<span class="mw-page-title-main">Green card</span> Lawful permanent residency in the United States

A green card, known officially as a permanent resident card, is an identity document which shows that a person has permanent residency in the United States. Green card holders are formally known as lawful permanent residents (LPRs). As of 2019, there are an estimated 13.9 million green card holders, of whom 9.1 million are eligible to become United States citizens. Approximately 18,700 of them serve in the U.S. Armed Forces.

An L-1 visa is a visa document used to enter the United States for the purpose of work in L-1 status. It is a non-immigrant visa, and is valid for a relatively short amount of time, from three months to five years, based on a reciprocity schedule. With extensions, the maximum stay is seven years.

An O visa is a classification of non-immigrant temporary worker visa granted by the United States to an alien "who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements", and to certain assistants and immediate family members of such aliens.

The E-3 visa is a United States visa for which only citizens of Australia are eligible. It was created by an Act of the United States Congress as a result of the Australia–United States Free Trade Agreement (AUSFTA), although it is not formally a part of the AUSFTA. The legislation creating the E-3 visa was signed into law by U.S. President George W. Bush on May 11, 2005. It is widely believed to have grown out of the negotiation of a trade deal between the US and Australia.

<span class="mw-page-title-main">Visa policy of the United States</span> Policy on permits required to enter the United States and its unincorporated territories

Visitors to the United States must obtain a visa from one of the U.S. diplomatic missions unless they are citizens of one of the visa-exempt or Visa Waiver Program countries.

<span class="mw-page-title-main">Employment authorization document</span> Document issued by the United States Citizenship and Immigration Services

A Form I-766 employment authorization document or EAD card, known popularly as a work permit, is a document issued by the United States Citizenship and Immigration Services (USCIS) that provides temporary employment authorization to noncitizens in the United States.

P visa is a type of temporary employment visa of the United States, granted to alien athletes, artists, and entertainers, and their spouses and children. The term "P" refers to 8 U.S.C. § 1101(a)(15)(P), Section 101 of the Immigration and Nationality Act.

The United States EB-5 visa, employment-based fifth preference category or EB-5 Immigrant Investor Visa Program was created in 1990 by the Immigration Act of 1990. It provides a method for eligible immigrant investors to become lawful permanent residents—informally known as "green card" holders—by investing substantial capital to finance a U.S. business as long as it creates at least 10 new, full-time jobs for Americans and work-authorized immigrants. The EB-5 program is intended to encourage both "foreign investments and economic growth." The EB-5 Immigrant Investor Visa Program is one of five employment-based (EB) preference programs in the United States.

A Request for Evidence (RFE) is a request issued by the United States Citizenship and Immigration Services to petitioners for residency, citizenship, family visas, and employment visas. Examples of petitions for which a RFE may be issued are Form I-129, Form I-140, and Form I-130.

The EB-1 visa is a preference category for United States employment-based permanent residency. It is intended for "priority workers". Those are foreign nationals who either have "extraordinary abilities", or are "outstanding professors or researchers", and also includes "some executives and managers of foreign companies who are transferred to the US". It allows them to remain permanently in the US.

EB-2 is an immigrant visa preference category for United States employment-based permanent residency, created by the Immigration Act of 1990. The category includes "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States". Applicants must generally have an approved Permanent Labor Certification, a job offer, and their employer must have filed an Immigrant Petition for Alien Worker with the USCIS.

EB-3 is a visa preference category for United States employment-based permanent residency. It is intended for "skilled workers", "professionals", and "other workers". Those are prospective immigrants who don't qualify for the EB-1 or EB-2 preferences. The EB-3 requirements are less stringent, but the backlog may be longer. Unlike persons with extraordinary abilities in the EB-1 category, EB-3 applicants require a sponsoring employer. There is no "self-petition" category.

Form I-129, Petition for a Nonimmigrant Worker is a form submitted to the United States Citizenship and Immigration Services used by employers or prospective employers to obtain a worker on a nonimmigrant visa status. Form I-129 is used to either file for a new status or a change of status, such as new, continuing or changed employer or title; or an amendment to the original application. Approval of the form makes the worker eligible to start or continue working at the job if already in the United States. If the worker is not already in the United States, an approved Form I-129 may be used to submit a visa application associated with that status. The form is 36 pages long and the instructions for the form are 29 pages long. It is one of the many USCIS immigration forms.

<span class="mw-page-title-main">Form I-130</span>

Form I-130, Petition for Alien Relative is a form submitted to the United States Citizenship and Immigration Services by a United States citizen or Lawful Permanent Resident petitioning for an immediate or close relative intending to immigrate to the United States. It is one of numerous USCIS immigration forms. As with all USCIS petitions, the person who submits the petition is called the petitioner and the relative on whose behalf the petition is made is called the beneficiary. The USCIS officer who evaluates the petition is called the adjudicator.

A Notice of Intent to Deny (NOID) is a notice issued by the United States Citizenship and Immigration Services to petitioners for residency, citizenship, family visas, and employment visas. Examples of petitions for which a NOID may be issued are Form I-129, Form I-140, and Form I-130.

A Notice of Intent to Revoke (NOIR) is a communication sent by the United States Citizenship and Immigration Services to a petitioner about a previously approved petition, telling him or her that the USCIS intends to revoke the petition, along with the reasons for revocation, and giving the petitioner a fixed amount of time to respond. NOIRs may be issued for immigrant visa petitions and for non-immigrant visa petitions.

The National Visa Center (NVC) is a center that is part of the U.S. Department of State that plays the role of holding United States immigrant visa petitions approved by the United States Citizenship and Immigration Services until an immigrant visa number becomes available for the petition, at which point it arranges for the visa applicant(s) to take the visa interview at a consulate abroad. It is located in Portsmouth, New Hampshire. It was established on July 26, 1994, on the site of an Air Force base that was closed down by The Pentagon.

<span class="mw-page-title-main">Form I-140</span> I-140, Immigrant Petition for Alien Worker

Form I-140, Immigrant Petition for Alien Worker is a form submitted to the United States Citizenship and Immigration Service (USCIS) by a prospective employer to petition an alien to work in the US on a permanent basis. This is done in the case when the worker is deemed extraordinary in some sense or when qualified workers do not exist in the US. The employer who files is called the petitioner, and the alien employee is called the beneficiary; these two can coincide in the case of a self-petitioner. The form is 6 pages long with a separate 10-page instructions document as of 2016. It is one of the USCIS immigration forms.

A National Interest Waiver is an exemption from the labor certification process and job offer requirement for advanced degree/exceptional ability workers applying for an EB-2 Visa for Immigration into the United States.

Kazarian v. USCIS refers to a case decided by the United States Court of Appeals for the Ninth Circuit on March 4, 2010, pertaining to a decision by United States Citizenship and Immigration Services (USCIS) on a Form I-140 EB-1 application. The decision led the USCIS to issue a policy memo to change its adjudication process for EB-1 and EB-2 petitions to a "two-step review" where the first step would focus on counting pieces of evidence and the second step would be a final merits determination. The case has been cited by USCIS as well as by petitioners in hundreds of Form I-140 petitions and appeals since 2010.

References

  1. 1 2 3 Herbst, Moira (17 May 2009). "Immigration: When Only 'Geniuses' Need Apply". Bloomberg Businessweek.
  2. ↑ "Policy Memorandum, December 22, 2010" (PDF). USCIS. Retrieved 5 December 2017.
  3. 1 2 3 4 "USCIS Adjudicator Field Manual". USCIS. Retrieved 5 December 2017.PD-icon.svg This article incorporates text from this source, which is in the public domain .
  4. ↑ "Employment-Based Immigration: First Preference EB-1". Archived from the original on 2012-08-29. Retrieved 2012-09-16.
  5. ↑ "Immigrant Classes of Admission | Homeland Security". www.dhs.gov. Retrieved 2022-09-11.
  6. ↑ 8 C.F.R. 204.5(h)(4)
  7. ↑ "ISU Four Continents Championships 2022". International Skating Union. January 22, 2022.
  8. ↑ "Carreira-v-USCIS-Complaint" (PDF). October 21, 2018.
  9. ↑ Keshner, Andrew (October 23, 2018). "Gold medal-winning ice skater sues over U.S. authorities' refusal to deem her 'extraordinary'". MarketWatch .
  10. ↑ "O-1 Visa: Individuals with Extraordinary Ability or Achievement". Archived from the original on 2010-07-28. Retrieved 2012-09-16.
  11. 1 2 3 4 Pearson, Erica (21 October 2012). "Bettina May earns 'genius' green card -- for her unique burlesque, pin-up abilities". New York Daily News .
  12. ↑ "The Mexican Developer Behind Ashton Kutcher's Latest Celebrities App, Publishes a Critic Artwork: The Flight of the Humanized Robot". Newswire.
  13. ↑ Levin, Carl (November 17, 2005). "Levin Amendment to Correct "Catch-22" for "Aliens of Extraordinary Ability" Headed for Congressional Approval". Vote Smart . Retrieved December 5, 2018.
  14. ↑ "Ice dancer Belbin sworn in as U.S. citizen". USA Today . December 31, 2005. Retrieved December 5, 2018.
  15. ↑ Happy World Foundation Inc.
  16. 1 2 McBride, Sarah (29 June 2012). "U.S. "Genius" visa attracts entrepreneurs and Playmates". Reuters.
  17. 1 2 Crook, Clive (30 January 2014). "I Was a Genius Just Like Justin Bieber". Bloomberg View.
  18. ↑ "10 things you may not have known about The Slow Mo Guys". YouTube . 19 August 2018. Retrieved 13 December 2022.
  19. ↑ "US Embassy grants Jolina Magdangal special visa".
  20. ↑ "Q&A: Gary Numan On New Album Splinter, His Legacy, And Surviving A Mid-life Crisis". 30 July 2013.
  21. ↑ "Psy receives 'O Visa' for his stay in the U.S. - allkpop.com".
  22. ↑ "Codename: The Welsh Dragon". Codename: The Welsh Dragon. Retrieved 2016-06-07.
  23. ↑ "La historia de Leyes: el artista y emprendedor de 22 años, fundador de Los Reyes". Billboard. Retrieved 24 Mar 2024.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.