Volume 6 - Immigrants

Appendices

Step One: Review Evidence Submitted with Extraordinary Ability Petitions
Criterion^[1]	Scope of Review
Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.^[2]	First, USCIS determines if the person was the recipient of prizes or awards. The description of this type of evidence in the regulation indicates that the focus should be on the person's receipt of the awards or prizes, as opposed to his or her employer's receipt of the awards or prizes. Second, USCIS determines whether the person has received lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor. Relevant considerations regarding whether the basis for granting the prizes or awards was excellence in the field include, but are not limited to: The criteria used to grant the awards or prizes; The national or international significance of the awards or prizes in the field; and The number of awardees or prize recipients, as well as any limitations on competitors (an award limited to competitors from a single institution, for example, may have little national or international significance.)
Membership in associations in the field for which classification is sought that require outstanding achievement of their members, as judged by recognized national or international experts in their disciplines or fields.^[3]	USCIS determines if the association for which the person claims membership requires that members have outstanding achievements in the field as judged by recognized experts in that field. The petitioner must show that membership in the associations is based on the person being judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. For example, admission to membership in the National Academy of Sciences as a foreign associate requires candidates to be nominated by an academy member, and membership is ultimately granted based upon recognition of the candidate's distinguished achievements in original research.^[4] Associations may have multiple levels of membership. The level of membership afforded to the person must show that in order to obtain that level of membership, the person was judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. Relevant factors that may lead to a conclusion that the person's membership in the associations was not based on outstanding achievements in the field include, but are not limited to, instances where the person's membership was based: Solely on a level of education or years of experience in a particular field; On the payment of a fee or by subscribing to an association's publications; or On a requirement, compulsory or otherwise, for employment in certain occupations, such as union membership or guild affiliation for actors.
Published material about the person in professional or major trade publications or other major media relating to the person's work in the field for which classification is sought. Such evidence must include the title, date, and author of the material, and any necessary translation.^[5]	First, USCIS determines whether the published material was related to the person and the person's specific work in the field for which classification is sought. The published material should be about the person, relating to his or her work in the field, not just about his or her employer or another organization that he or she is associated with. Marketing materials created for the purpose of selling the person's products or promoting his or her services are not generally considered to be published material about the beneficiary. Second, USCIS determines whether the publication qualifies as a professional publication, major trade publication, or major media publication. Evidence of published material in professional or major trade publications or in other major media publications about the person should establish that the circulation (online or in print) is high compared to other circulation statistics and show who the intended audience is, as well as the title, date, and author of the material.
The person's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought.^[6]	USCIS determines whether the person has acted as the judge of the work of others in the same or an allied field of specialization. The petitioner must show that the person has not only been invited to judge the work of others, but also that the person actually participated in the judging of the work of others in the same or allied field of specialization. For example: Peer reviewing for a scholarly journal, as evidenced by a request from the journal to the person to do the review, accompanied by proof that the review was actually completed. Serving as a member of a Ph.D. dissertation committee that makes the final judgment as to whether a candidate's body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.
The person's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.^[7]	First, USCIS determines whether the person has made original contributions in the field. Second, USCIS determines whether the person's original contributions are of major significance to the field. Officers must evaluate whether the original work constitutes major, significant contributions to the field. Although funded and published work may be "original," this fact alone is not sufficient to establish that the work is of major significance. For example, peer-reviewed presentations at academic symposia or peer-reviewed articles in scholarly journals that have provoked widespread commentary or received notice from others working in the field, or entries (particularly a goodly number) in a citation index that cite the person's work as authoritative in the field, may be probative of the significance of the person's contributions to the field of endeavor. Officers should take into account the probative analysis that experts in the field may provide in opinion letters regarding the significance of the person's contributions in order to assist in giving an assessment of the person's original contributions of major significance. That said, not all expert letters provide such analysis. Letters that specifically articulate how the person's contributions are of major significance to the field and their impact on subsequent work add value. Letters that lack specifics and simply use hyperbolic language do not add value and are not considered to be probative evidence that may form the basis for meeting this criterion.
The person's authorship of scholarly articles in the field, in professional or major trade publications or other major media.^[8]	First, USCIS determines whether the person has authored scholarly articles in the field. As defined in the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college, university, or research institution. In general, it should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. For other fields, a scholarly article should be written for learned persons in that field. ("Learned" is defined as "having or demonstrating profound knowledge or scholarship").^[9] Learned persons include all persons having profound knowledge of a field. Second, USCIS determines whether the publication qualifies as a professional publication, major trade publication, or major media publication. Evidence of published material in professional or major trade publications or in other major media publications should establish that the circulation (online or in print) is high compared to other circulation statistics and who the intended audience of the publication is.
Display of the person's work in the field at artistic exhibitions or showcases.^[10]	First, USCIS determines whether the work that was displayed is the person's work product. The description of this type of evidence in the regulation provides that the work must be the person's. Second, USCIS determines whether the venues (virtual or otherwise) where the person's work was displayed were artistic exhibitions or showcases. Merriam-Webster's online dictionary defines exhibition as a public showing (as of works of art, objects of manufacture, or athletic skill).^[11]
The person has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.^[12]	First, USCIS determines whether the person has performed in leading or critical roles for organizations or establishments. In evaluating such evidence, officers must examine whether the role is (or was) leading or critical. If a leading role, the evidence must establish that the person is (or was) a leader. A title, with appropriate matching duties, can help to establish if a role is (or was), in fact, leading. If a critical role, the evidence must establish that the person has contributed in a way that is of significant importance to the outcome of the organization or establishment's activities. A supporting role may be considered "critical" if the person's performance in the role is (or was) important in that way. It is not the title of the person's role, but rather the person's performance in the role that determines whether the role is (or was) critical. This is one criterion where letters from persons with personal knowledge of the significance of the person's leading or critical role can be particularly helpful to officers in making this determination, so long as the letters contain detailed and probative information that specifically addresses how the person's role for the organization or establishment was leading or critical. Evidence of experience must consist of letters from employers.^[13] Second, USCIS determines whether the organization or establishment has a distinguished reputation. The relative size or longevity of an organization or establishment is not in and of itself a determining factor. Rather, the organization or establishment must be recognized as having a distinguished reputation. Merriam-Webster's online dictionary defines distinguished as marked by eminence, distinction, or excellence or befitting an eminent person.^[14]
The person has commanded a high salary, or other significantly high remuneration for services, in relation to others in the field.^[15]	USCIS determines whether the person's salary or remuneration is high relative to the compensation paid to others working in the field. Evidence regarding whether the person's compensation is high relative to that of others working in the field may take many forms. If the petitioner is claiming to meet this criterion, then the burden is on the petitioner to provide appropriate evidence. Examples may include, but are not limited to, geographical or position-appropriate compensation surveys and organizational justifications to pay above the compensation data. Officers may find the following websites helpful in evaluating the evidence provided by the petitioner: The Bureau of Labor Statistics (BLS) Overview of BLS Wage Data by Area and Occupation webpage; The Department of Labor's Career One Stop website; and The Department of Labor's Office of Foreign Labor Certification Online Wage Library. Persons working in different countries should be evaluated based on the wage statistics or comparable evidence in that country, rather than by simply converting the salary to U.S. dollars and then viewing whether that salary would be considered high in the United States.
Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.^[16]	USCIS determines whether the person has enjoyed commercial successes in the performing arts. This criterion focuses on volume of sales and box office receipts as a measure of the person's commercial success in the performing arts. Therefore, the mere fact that an person has recorded and released musical compilations or performed in theatrical, motion picture, or television productions would be insufficient, in and of itself, to meet this criterion. The evidence must show that the volume of sales and box office receipts reflect the person's commercial success relative to others involved in similar pursuits in the performing arts.
Comparable evidence to establish the person's eligibility if the standards do not readily apply to the beneficiary's occupation.^[17]	USCIS determines if the evidence submitted is comparable to the evidence required in 8 CFR 204.5(h)(3). This regulatory provision provides petitioners the opportunity to submit “comparable” evidence to establish the person beneficiary's eligibility, if it is determined that the standards described in the regulations do not readily apply to the person's occupation. When evaluating such comparable evidence, officers must consider whether the regulatory criteria are readily applicable to the person's occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in that regulation. General assertions that any of the ten objective criteria described in the regulations do not readily apply to the person's occupation are not probative and should be discounted. Similarly, claims that USCIS should accept witness letters as comparable evidence are not persuasive. On the other hand, the following are examples of where the comparable evidence provision might apply. A person who is an Olympic coach whose athlete wins an Olympic medal while under the person's principal tutelage would likely constitute evidence comparable to that in 8 CFR 204.5(h)(3)(v). Election to a national all-star or Olympic team might serve as comparable evidence for evidence of memberships in 8 CFR 204.5(h)(3)(ii). There is no comparable evidence for the one-time achievement of a major, international recognized award.

Footnotes

[^ 1] In some cases, evidence relevant to one criterion may be relevant to other criteria set forth in 8 CFR 204.5(h)(3).

[^ 2] See 8 CFR 204.5(h)(3)(i).

[^ 3] See 8 CFR 204.5(h)(3)(ii).

[^ 4] See National Academic of Sciences website.

[^ 5] See 8 CFR 204.5(h)(3)(iii).

[^ 6] See 8 CFR 204.5(h)(3)(iv).

[^ 7] See 8 CFR 204.5(h)(3)(v).

[^ 8] See 8 CFR 204.5(h)(3)(vi).

[^ 9] See Webster's II New College Dictionary (3rd ed. 2005).

[^ 10] See 8 CFR 204.5(h)(3)(vii).

[^ 11] See Merriam-Webster Dictionary’s definition of “exhibition.”

[^ 12] See 8 CFR 204.5(h)(3)(viii).

[^ 13] See 8 CFR 204.5(g)(1).

[^ 14] See Merriam-Webster Dictionary’s definition of “distinguished.”

[^ 15] See 8 CFR 204.5(h)(3)(ix).

[^ 16] See 8 CFR 204.5(h)(3)(x).

[^ 17] See 8 CFR 204.5(h)(4).

Step One: Review Evidence Submitted with Petition for Outstanding Professor or Researcher
Criterion^[1]	Scope of Review
Receipt of major prizes or awards for outstanding achievement in the academic field.^[2]	First, USCIS determines if the beneficiary was the recipient of prizes or awards. The description of this type of evidence in the regulation indicates that the focus must be on the beneficiary's receipt of the major prizes or awards, as opposed to his or her employer's receipt of the prizes or awards. Second, USCIS determines whether the beneficiary has received major prizes or awards for outstanding achievement in the academic field. Relevant considerations regarding whether the basis for granting the major prizes or awards for outstanding achievement in the academic field include, but are not limited to: The criteria used to grant the major prizes or awards; and The number of prize recipients or awardees, as well as any limitations on competitors (a prize or award limited to competitors from a single institution, for example, may not rise to the level of major).
Membership in associations in the academic field that require outstanding achievements of their members.^[3]	First, USCIS determines if the association for which the beneficiary claims membership requires outstanding achievements in the academic field. The petitioner must show that membership in the association(s) is based on the beneficiary's outstanding achievements in the academic field. Associations may have multiple levels of membership. The level of membership afforded to the beneficiary must show that it requires outstanding achievements in the academic field for which classification is sought. Relevant factors that may lead to a conclusion that the beneficiary's membership in the association was not based on outstanding achievements in the academic field include, but are not limited to, instances where the beneficiary's membership was based: Solely on a level of education or years of experience in a particular field; or On the payment of a fee or by subscribing to an association's publications.
Published material in professional publications written by others about the beneficiary's work in the academic field. Such material must include the title, date, and author of the material, and any necessary translation.^[4]	First, USCIS determines whether the published material was about the beneficiary's work. The published material should be about the beneficiary's work in the field, not just about his or her employer or another organization that he or she is associated with. Articles that cite the beneficiary's work as one of multiple footnotes or endnotes are not generally "about" the beneficiary's work. Second, USCIS determines whether the publication qualifies as a professional publication. Evidence of published material in professional publications about the beneficiary should establish the circulation (online or in print) and the intended audience of the publication, as well as the title, date, and author of the material.
The beneficiary's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field.^[5]	USCIS determines whether the beneficiary has participated, either individually or on a panel, as the judge of the work of others in the same or an allied academic field. The petitioner must show that the beneficiary has not only been invited to judge the work of others, but also that the beneficiary actually participated in the judging of the work of others in the same or allied academic field. For example: Peer reviewing for a scholarly journal, as evidenced by a request from the journal to the beneficiary to do the review, accompanied by proof that the review was actually completed. Serving as a member of a Ph.D. dissertation committee that makes the final judgment as to whether a candidate's body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.
The beneficiary's original scientific or scholarly research contributions to the academic field.^[6]	USCIS determines whether the beneficiary has made original scientific or scholarly research contributions to the academic field. The regulations do not require that the beneficiary's contributions be of "major significance." That said, the description of this type of evidence in the regulation does not simply require original research, but an original scientific or scholarly research contribution. Moreover, the description of this type of evidence in the regulation requires that the contribution must be "to the academic field," rather than an individual laboratory or institution. The regulations include a separate criterion for scholarly articles.^[7] Therefore, contributions are a separate evidentiary requirement from scholarly articles. Possible items that could satisfy this criterion include, but are not limited to: Citation history or patterns for the beneficiary's work, as evidenced by number of citations, as well as an examination of the impact factor for the journals in which the beneficiary publishes. While many scholars publish, not all are cited or publish in journals with significant impact factors. The petitioner may use web tools such as Google Scholar, SciFinder, and the Web of Science to establish the number of citations and the impact factor for journals. Since scholarly work tends to be specialized and expressed in arcane and specialized language, officers should take into account the probative analysis that experts in the field may provide in opinion letters regarding the beneficiary's contributions in order to assist in giving an assessment of his or her original contributions. That said, not all expert letters provide such analysis. Letters that specifically articulate how the beneficiary has contributed to the field and the impact on subsequent work add value. Letters that lack specifics and simply use hyperbolic language do not add value and are not considered to be probative evidence that may form the basis for meeting this criterion.
The beneficiary’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.^[8]	First, USCIS determines whether the beneficiary has authored scholarly articles in the field. As defined in the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college or university. It should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. Second, USCIS determines whether the publication qualifies as a scholarly book or as a scholarly journal with international circulation in the academic field. Evidence of published material in scholarly journals with international circulation should establish that the circulation (online or in print) is, in fact, international, and who the intended audience of the publication is. Scholarly journals are typically written for a specialized audience often using technical jargon. Articles normally include an abstract, a description of methodology, footnotes, endnotes, and bibliography.
Comparable evidence to establish the beneficiary's eligibility if the standards do not readily apply.^[9]	USCIS determines if the evidence submitted is comparable to the evidence required in 8 CFR 204.35(i)(3)(i). A petitioner for an outstanding professor or researcher does not need to establish that a particular standard is not readily applicable to the beneficiary's occupation. Instead, the petitioner may submit alternative, but qualitatively comparable evidence, if it establishes that the standards do not readily apply to that evidence. The existing evidentiary standards serve as a roadmap for determining, among other things, the quantity and types of evidence that should be submitted in order for such evidence to be considered “comparable.”^[10]

Footnotes

[^ 1] In some cases, evidence relevant to one criterion may be relevant to other criteria set forth in 8 CFR 204.5(i)(3).

[^ 2] See 8 CFR 204.5(i)(3)(i)(A).

[^ 3] See 8 CFR 204.5(i)(3)(i)(B).

[^ 4] See 8 CFR 204.5(i)(3)(i)(C).

[^ 5] See 8 CFR 204.5(i)(3)(i)(D).

[^ 6] See 8 CFR 204.5(i)(3)(i)(E).

[^ 7] See 8 CFR 204.5(i)(3)(i)(F).

[^ 8] See 8 CFR 204.5(i)(3)(i)(F).

[^ 9] See 8 CFR 204.5(i)(3)(ii).

[^ 10] See 81 FR 2068, 2075 (PDF) (January 15, 2016).

There is no specific form that petitioning employers must use to comply with the notice of filing requirements for Schedule A petitions. The following is a sample notice of filing that petitioners may elect to use in the workplace. USCIS developed this sample for stakeholders’ convenience. It is not intended to be relied upon to create or confer any right(s) or benefit(s), substantive or procedural, enforceable at law by any person or other party in benefit applications before USCIS, in removal proceedings, in litigation with the United States, or in any other form or manner.

Officers should accept notices that are modeled after the sample, but should not require use of the exact sample. Petitioning employers may use other notice formats as long as they comply with the DOL regulations.

Notice of the Filing of the Application for Permanent Employment Certification

This notice is being provided as a result of the filing of an Application for Permanent Employment Certification (ETA Form 9089). The employer intends to permanently employ a foreign national in the job opportunity described below.

Any person may provide documentary evidence bearing on the application to the Certifying Officer of the U.S. Department of Labor. The address of the Certifying Officer is:

_____________________________________________________________________

This Notice of Filing will be posted between 30 and 180 days before filing the permanent labor certification application.

INFORMATION ABOUT THE JOB OPPORTUNITY

EMPLOYER’S NAME: _________________________________________________________

POSITION TITLE: ____________________________________________________________

POSITION DUTIES: __________________________________________________________

___________________________________________________________________________

RATE OF PAY: $________ per ____________

ADDRESS(ES) OF EMPLOYMENT: ______________________________________________

____________________________________________________________________________

EMPLOYER STATES:

There is no bargaining representative for the job opportunity with the employer in the location(s) of intended employment.
This notice was clearly visible and unobstructed while posted. It was posted for at least ten (10) consecutive business days in a conspicuous location in the workplace, where the employer’s U.S. workers could readily read the posted notice, including but not limited to locations in the immediate vicinity of the wage and hour notices.
DATE POSTED: __________________________________
DATE REMOVED: ________________________________
LOCATION(S) WHERE THE NOTICE WAS POSTED: ___________________________________________________________________________________________________________________________

[SIGNATURE] DATE

___________________________ ___________________________

[PRINTED NAME AND TITLE]

___________________________

On November 19, 2019, USCIS provided more clarity on several requirements for special immigrant juvenile (SIJ) classification, including the following:

USCIS reaffirmed and clarified that the petitioner must have been a juvenile under the relevant state law definition of “juvenile” (or equivalent term) when the juvenile court order was issued;^[1]
USCIS clarified the definition of a juvenile court for purposes of SIJ classification and provides examples of the types of evidence that may be provided to establish that a court is acting as a qualifying juvenile court;^[2]
USCIS clarified guidance on what constitutes a qualifying “dependency” or “custody” determination from the juvenile court for the purposes of SIJ classification eligibility;^[3]
USCIS clarified guidance on the statutorily-mandated USCIS consent function;^[4]
USCIS clarified guidance on what qualifies as a similar basis to abuse, neglect, or abandonment under state law;^[5] and
USCIS reaffirmed for officers that the agency no longer requires that the juvenile court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification.^[6]

These updates and clarifications of current USCIS policy guidance are based on USCIS interpretation of the applicable terms in DHS regulations and the Immigration and Nationality Act (INA). An agency is not required to use the Administrative Procedure Act’s (APA) notice-and-comment procedures to issue an interpretive rule or one that amends or repeals an existing interpretive rule,^[7] or when modifying rules of agency organization, procedure, or practice.^[8] However, the instruction to not require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification was a policy change in response to the resource strain of ongoing litigation. As with all other policy guidance USCIS issues, these updates and clarifications to officers do not add to the substantive regulations, create legally binding rights, obligations, or change the substantive standards by which USCIS will evaluate SIJ petitions. Accordingly, USCIS published no Federal Register notices requesting public comment because public notice is not required for these internal policy changes and clarifications.

Unfair Surprise and Reliance Interest

An agency can change its interpretation of a regulation at different times in its history as long as the interpretative changes create no unfair surprise.^[9] In this case, USCIS is not changing its policy regarding SIJ adjudications. USCIS is updating this guidance to clarify what the law and regulations permit or require because of potential confusion. It has never been USCIS official policy to grant SIJ classification based on a state judge’s order that is sought primarily to permit the noncitizen to obtain lawful immigration status.

USCIS has analyzed the potential for and taken into account serious reliance interests that may be engendered by the practices USCIS officers may have followed prior to this clarification. USCIS acknowledges that a person who may have been approved for SIJ classification before this policy alert may no longer be approved by an officer following this clarifying guidance in rendering their decision. An advocate or representative of an SIJ petitioner, not knowing of this policy, may erroneously petition the state court judge who is handling their client’s case to issue an order with findings of fact in support of the petitioner’s eligibility for SIJ that does not provide relief from parental abuse, neglect, abandonment or a similar basis under state law. However, the statutory and regulatory eligibility criteria have never permitted SIJ classification to be approved using such state court orders, nor has it been official USCIS policy. Therefore, an SIJ petitioner cannot be said to have acted in reliance on the continuation of a practice and policy that has not been a USCIS practice and policy and which is contrary to the law. USCIS must limit the approval of SIJ classification to cases who are eligible based on a valid court order as required by the INA regardless of its effects on parties who may rely on erroneous state court orders.

With respect to the policy change to no longer require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification, USCIS made that change in response to the strain of litigation. USCIS anticipated that the change would not negatively impact petitioners with potential reliance interests, rather it would reduce their evidentiary burden.

Implementation

USCIS implemented this policy update immediately, as it was merely a clarification. However, USCIS still allowed interested parties an opportunity to comment by providing a 10-day comment period, as is generally provided for Policy Manual publications.

Footnotes

[^ 1] See Chapter 2, Eligibility Requirements, Section A, General [6 USCIS-PM J.2(A)] and Section B, Age-out Protections For Filing with USCIS [6 USCIS-PM J.2(B)].

[^ 2] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order [6 USCIS-PM J.2(C)].

[^ 3] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 1, Dependency or Custody [6 USCIS-PM J.2(C)(1)].

[^ 4] See Chapter 2, Eligibility Requirements, Section D, USCIS Consent [6 USCIS-PM J.2(D)].

[^ 5] See Chapter 3, Documentation and Evidence, Section A, Juvenile Court Order(s) and Administrative Documents, Subsection 1, Qualifying Juvenile Court Determinations [6 USCIS-PM J.3(A)(1)].

[^ 6] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 2, Parental Reunification [6 USCIS-PM J.2(C)(2)].

[^ 7] See Perez v. Mortgage Bankers Assoc., 135 S.Ct. 1199 (2015).

[^ 8] James v. Hurson Associates, Inc. v. Glickman, 229 F.3d 277 (D.C. Cir. 2000)

[^ 9] See Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 171 (2007). See Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012).

Current as of September 16, 2021

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Volume 6 - Immigrants

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