We recently reviewed twelve petitions for EB-1-1 immigrant visa classification decided by the Administrative Appeals Office (AAO) of the Immigration and Naturalization Service (INS or Service) between December 2000 and May 2001. Of those cases, five were approvals; the others were denials or remands. This article reviews those decisions for trends in EB-1-1 adjudications.

As background, the EB-1-1 immigrant visa classification is reserved for aliens of extraordinary ability. This classification can be satisfied in one of two ways. The first and rarest way to obtain EB-1-1 classification is by receiving a major, internationally recognized award such as a Nobel or Pulitzer Prize. The second way to qualify for EB-1-1 classification involves fulfilling at least three out of ten specified criteria that measure extraordinary ability. These ten criteria are as follows:

1. Receipt of a lesser nationally or internationally recognized prize for achievement in the field.
2. Membership in associations in the field that require "outstanding achievement" of their members. This standard is relatively vague. Associations that are open to all members of a given profession can be considered, but associations that limit membership to only the most accomplished members of the profession are certainly more valuable.
3. Material published about the alien in major trade publications or other major media. The material must concern the person’s work in the field. Publications could range from journals specific to the field, like The Journal of Otolaryngology, to major newspapers, like The New York Times.
4. Serving as a judge of others in the field, either individually or on a panel. Participating in the peer review process of a scientific article or acting as a member of a thesis review committee would fulfill this requirement.
5. Original, scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field. This standard is wide open. Basically, the INS will base its judgment of the alien’s contribution on the letters of support that others in the field submit.
6. Authorship of scholarly articles in the field. This refers to articles that the alien wrote concerning his or her work rather than material written about the alien by others, as is the case with standard 3 above. Again, the publications can range from major trade journals to mass media. Although the regulations refer specifically to "articles," other forms of publication such as visual media may fulfill this requirement.
7. Display of the alien’s work in exhibitions or showcases. The regulations do not mention how prestigious the exhibition must be.
8. Performing a critical or leading role for organizations that have a distinguished reputation. This could be acting as curator for the Metropolitan Museum of Art or serving as an essential researcher for an important laboratory.
9. Commanding a high salary in the field. The regulation requires that the alien’s salary or remuneration be high in relation to others in the field, so a teacher need not make as much as a professional football player.
10. Commercial success in the performing arts. This can be demonstrated by box office receipts from the alien’s films or plays, record sales, or selling a video documentary to a network for a notable sum.

Simply fulfilling three of these criteria does not guarantee that EB-1-1 status will be granted. The Service has made it clear that to show extraordinary ability, the alien must prove him or herself to be at the very top of his or her field. Comprehensive documentation must be provided to substantiate claims to extraordinary ability. The Service is very particular about the forms and sources of documentation, and the extent to which it establishes that the beneficiary is at the very top of the field.

Upon review of twelve EB-1-1 appeals, several general trends can be gleaned, both relating to the erratic behavior of INS adjudicators and to the specifics of the law as highlighted by the AAO.

Inappropriate Reinterpretation of the Regulations by INS Adjudicators

Several EB-1-1 appeals that were approved by the AAO were for petitions that had been erroneously denied by an INS regional service center adjudicator.

There seems to be a high incidence of error in the Service when reviewing initial petitions. For example, several appeals noted that the INS requested further evidence pertaining to criteria that were not addressed in the petition. The Service apparently failed to realize that the regulations require only three criteria filled, as long as those criteria are well substantiated with primary evidence and strong support. The absence of any one criteria is not cause for denial.

There also seems to be a high incidence of confusion among INS adjudicators regarding the requirement of establishing national or international acclaim. The statute demands "national or international" acclaim, and the INS has no discretion to rule that simply having national, not international, acclaim in a given field is insufficient to establish extraordinary ability. However, in several of the appeals, the INS service centers did just that, and denied the petition because the individual failed to establish international acclaim. On appeal, the AAU corrected the mistake, restated the wording of the statute, and approved the petition.

To help ensure that petitions aren’t wrongfully denied by inexperienced or uninformed INS examiners, we suggest the following practice tips:

• When writing the EB-1-1 petition letter and document index, use the exact wording of the regulations in the criteria headings. That way the examiner should not be confused about nuances in language or requirements.

• Quote the statute and regulations directly to spell out the law for a potentially less-than-informed adjudicator.

Hopefully, these measures will lessen Service confusion and will lead to accurate adjudications on the first try.

Appeal Dismissals

We noted several general trends in the AAO’s reasons for denying EB-1-1 petitions on appeal.

First, in all of the denials the AAO held that the petitioner failed to prove that he or she was at the very top of his or her field. Though the fulfillment of this standard is the basis for the EB-1-1 category, many people still apply for EB-1-1 classification who, while they are very talented in their field and perhaps have the potential to rise to the top, cannot or do not establish through substantial primary evidence that they already are at the top of their field. Generally, the reasons for denial were self-evident after a review of the regulations parallel to a review of the evidence submitted.

Following are quotes from the AAO stating its reasons for denying appeals in specific cases. We then set forth some thoughts on what these reasons imply for future petitions.

Establishing Excellence in the Field

If the petitioner’s consulting work involves judging the work of others as a fundamental job duty, then such work is typical for her field and thus is not evidence of extraordinary ability or sustained acclaim; it does not elevate the petitioner above other consultants who, to some degree, evaluate the work of their clients and their clients’ competitors.

The petitioner has not shown that his duties differ significantly from those of any number of researchers and residents at UCLA Medical Center.

To establish excellence in the field, there are several standards that must be met, and several rules to follow when attempting to reach these standards.

The petition must establish that the fulfillment of each criteria indicates extraordinary ability and is not just a part of the job that everyone in that position does, regardless of the level of that position. For example, if the petitioner is a professor, and the petition claims that by teaching he is judging the work of others and therefore demonstrates extraordinary ability, the INS might reply that all teachers teach, and therefore teaching does not establish extraordinary ability in this case. However, if the professor has won a national or international award for his teaching, then perhaps his teaching would reflect his extraordinary ability.

A common EB-1-1 petition involves doctors who were chief residents. While a chief resident has proven that he or she is at the top of the residents in one particular hospital, are the activities of this chief resident any different than those of any other chief resident? Reviewing the work of others and playing a critical role in the hospital are the responsibilities of a chief resident in all hospitals, and do not necessarily imply excellence in the field as a whole. Therefore, other factors must contribute to the establishment of excellence in the field. For example, if the hospital is the best in the country, maybe the chief resident at that hospital is at the very top of his or her field.

The beneficiary’s own accomplishments do not appear to approach Mr. **’s level of achievement; Mr. ** appears to have a much stronger claim than the beneficiary to be at the top of the field of medical and science writers.

In this decision the AAO determined that the petitioner could not be at the top of his or her field because one of the experts who wrote a letter of recommendation on his behalf has a much stronger claim to excellence based on his own achievements (the letter writer had won a Pulitzer Prize for his science and medical reporting).

It is essential to be aware of the achievements of others in the field, and not to emphasize those with greater achievements than the petitioner in the petitions. For example, if one of the petitioner’s colleagues in his or her field has won a Nobel Prize, then that person is at the top of the field, not the petitioner. Therefore, it might help to check if anyone in the field has won a top prize, and if not, write it in the petition to establish that to be at the top of the field at this point in time other achievements can qualify.

The petitioner has, in short, submitted numerous letters from individuals whose knowledge appears to derive entirely from what the petitioner himself has told them. These witnesses, in turn, conclude that the petitioner must be nationally or internationally acclaimed, given his accomplishments, although they themselves appear to have been unaware of this acclaim before the petitioner solicited letters from them.

In applying for EB-1-1 classification, it is important to establish that the letters of recommendation are from individuals who can verify how they are familiar with the petitioner or the petitioner’s work. Perhaps they attended a presentation that the petitioner gave on his or her area of expertise, or perhaps they have been following his or her published work. Though most of the referees should be from independent experts, not from co-workers, it is important that these experts explain their familiarity with the petitioner and explain their grounds for recommendation on the basis of the petitioner’s proven extraordinary ability.

Clarification of Regulatory Requirements

In one appeal for a petition filed on behalf of a medical reporter who has an M.D. but who writes for general interest publications, the question arose about what qualifies as a professional or trade publication. The AAO responded:

The regulatory criteria were designed to apply as broadly as possible to various fields of endeavor. If we define a "scholarly article" as a mass-market article written by a journalist with professional training in another field, we very narrowly limit the definition, and there is no consideration for the "professional or major trade publications" contemplated in the regulation. A general-audience newspaper is not a professional or trade publication, and articles in such a newspaper are popular, rather than scholarly articles.

According to the AAO, it is not acceptable to claim that an article written in a general-audience newspaper, magazine, etc. can fulfill the EB-1-1 criteria regarding authorship of scholarly articles.

In several appeals the issue arose as to what qualifies as an article about the petitioner. The AAO held:

Articles that merely mention the petitioner in passing are not about the petitioner in any meaningful way, and an article about a corporation is not about the petitioner merely because she used to work there.

The articles are about the competitions themselves, and identify the petitioner among many other competitors. The articles are not "about the alien" in any meaningful sense; otherwise, they are "about" every single player mentioned. The articles do not establish that the petitioner has attracted more media attention than other badminton players in China.

These decisions show that it is important to establish, through submission of substantial primary evidence, that the articles are about the petitioner directly, and that they support the claim that the petitioner is at the top of the field.

Finally, the AAO stressed in several decisions the importance of maintaining sustained international or national acclaim. Several EB-1-1 petitioners could only establish regional acclaim, and others could not establish sustained acclaim. It is important to establish sustained international or national acclaim through letters from experts from across the nation or world, nationally awarded prizes, articles in the national media, etc.

O-1 v. EB-1-1

Despite counsel’s assertions regarding "contradictory adjudications for the same category," the [EB-1-1] immigrant and [O-1] nonimmigrant visa classifications are not identical, and we do not have sufficient documentation before us to rule out Service error in the approval of the nonimmigrant visa petition. There is no statute, regulation or case law to indicate that prior approval of an O-1 nonimmigrant visa petition is presumptive evidence of eligibility for classification under section 203(b)(1)(A) of the Act.

This decision underscores that approval of an O-1 nonimmigrant visa petition based on extraordinary ability is not sufficient evidence of the fulfillment of criteria for extraordinary ability for an immigrant visa. It should not be assumed that O-1 classification is grounds for EB-1-1 approval. As the AAO decision makes clear, the two classifications and regulations are not identical, and the adjudications are completely separate issues.

Procedural Issues

Several procedural issues arose in the cases we reviewed. For example, in one case the INS regional service center denied the original EB-1-1 petition without first issuing a request for further evidence (RFE). On appeal, petitioner’s counsel demanded that the matter be remanded to the service center director so that the director could issue an RFE. The AAO responded that under Matter of Soriano, 19 I. & N. Dec. 764 (BIA 1988), the record would only be remanded to allow the INS to initially consider and address the new evidence if the petitioner proffers additional evidence addressing the deficiency on appeal. Since in this case no new evidence was submitted on appeal, the AAO dismissed the appeal.

Several AAO denials noted that the evidence submitted for the RFE was dated after the original appeal and made reference to awards won or papers written after the original appeal. According to case law cited by the AAO, the evidence submitted must be from before the appeal.

Conclusion

The AAO decisions reviewed for this article show a trend toward increased scrutiny of EB-1-1 petitions. As the INS regulations and INS decisions make clear, this visa category is only for people who truly have extraordinary ability and who can document their accomplishments.

In many cases we advise foreign nationals or their employers not to file a petition for EB-1-1 classification when they first consult with us. While the individual may be extraordinary, they may not be able to fully document that fact yet. A foreign national can be groomed to better document the stringent EB-1-1 standards. For example, many activities are career enhancing, such as networking, joining professional organizations, volunteering to participate on prestigious committees, serving on editorial boards, reviewing theses and publications, and determining who is citing or referring to the foreign national’s body of work. These will bolster an eventual EB-1-1 case and lead to the final goal: permanent residency.

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*Stephen Yale-Loehr (sy1@millermayer.com) is co-author of Immigration Law and Procedure. He also teaches immigration law and refugee law at Cornell Law School, and is of counsel at Miller Mayer (http://www.millermayer.com) in Ithaca, NY. He chairs the business immigration advocacy committee of the American Immigration Lawyers Association. Christina Alexander (cla@twmlaw) is a research assistant at True, Walsh & Miller. She graduated from Columbia University in 2001. © Copyright 2001 Stephen Yale-Loehr. All rights reserved.