New policy guidance will make it easier for employment-based immigrants to qualify as individuals with extraordinary abilities. Attorneys say the Biden administration’s new policy recognizes that many top performers are members of teams. This builds on previous agency actions that expanded the number of foreign-born scientists and engineers who can show that they possess extraordinary ability. The guidance could allow more immigrants to become eligible for the highest priority employment category and thereby speed up when they gain permanent residence.
The Employment-Based First Preference Category
The EB-1 category is for persons with extraordinary ability in the sciences, arts, education, business, or athletics, outstanding professors and researchers with at least three years of experience in teaching or research “who are recognized internationally,” and certain multinational managers or executives. The new guidance for EB-1 should benefit individuals and their employers.
Anyone qualifying in the employment-based first preference category will likely wait less time for a green card than other immigrants, especially if the individual is from India. Indians might wait a decade or much longer for permanent residence in other employment-based preference categories (i.e., EB-2 and EB-3).
Under the new guidance, U.S. Citizenship and Immigration Services will make qualifying as an individual with extraordinary ability easier by considering “a person’s receipt of team awards under the criterion for lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.”
USCIS removed language from the policy manual that suggested: “published material must demonstrate the value of the person’s work and contributions to satisfy the published material criterion.” Finally, USCIS clarified the appropriate evidence for claims of extraordinary ability involving “non-artistic exhibitions” of ability.
Evaluating The USCIS Policy Changes
The “team membership” provisions in the guidance are helpful, according to Lynden Melmed of BAL, a former chief counsel of USCIS. He said adjudicators have been inconsistent on that issue. “It is encouraging to see USCIS chip away at policy improvements,” he said. “Individually, each change is minor and probably only affects a few hundred cases yearly. But when we step back and look at the work over the past two years, adjudicators and applicants have much greater clarity regarding eligibility for the EB-1 visa category.”
Melmed estimates that more than 40% of Nobel Prizes in the sciences are awarded to team members. “By recognizing that winning an award as part of a team can help establish extraordinary ability, USCIS aligns its practice with long-established standards in the business, scientific and arts communities.”
Kevin Miner of Fragomen agrees that the new guidance continues a positive trend. He points to guidance on EB-1 issued in September 2023. According to USCIS, that guidance described examples of evidence that “may satisfy the relevant evidentiary criteria” and evaluation of evidence for qualifying for EB-1 in science, technology, engineering or math fields.
“Perhaps the most consequential update in the September 2023 guidance was an instruction that in performing the ‘final merits analysis’ when adjudicating a case, USCIS officers can consider accomplishments of the applicant that do not necessarily fit neatly in one of the specific EB-1 criteria,” said Miner. “The October 2024 guidance continues this trend, potentially making the EB-1 extraordinary ability process a more practical option for employers in private industry.”
The latest guidance on EB-1 follows favorable policy changes that increased approvals for O-1A visas and national interest waivers for employment-based green cards. Attorneys say companies should welcome the new guidance on EB-1.
Miner and Melmed point out that prior agency interpretations of extraordinary ability in the EB-1 category favored people in academia over business. Miner said, “By continuing to make logical, common-sense expansions of what can be considered evidence comparable to what an academic might present, USCIS has helped to level the playing field for the EB-1 extraordinary ability process.”
