Chapter 2 - Extraordinary Ability

A. Eligibility

When seeking classification as a person of extraordinary ability, a petitioner files an Immigrant Petition for Alien Workers (Form I-140) on behalf of a noncitizen (who may be the petitioner) with evidence demonstrating that the beneficiary is eligible.[1]

Eligibility for Extraordinary Ability Classification

The person has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation.

The person seeks to enter the United States to continue work in the area of extraordinary ability.

The person's entry into the United States will substantially benefit the United States in the future.

Self-Petitioners

A petition filed on behalf of a person with extraordinary ability does not need to be supported by a job offer; therefore, anyone can file the petition on behalf of the person, including the noncitizen who may file as a self-petitioner.[2] The person must still demonstrate, however, that he or she intends to continue work in the area of his or her extraordinary ability and that his or her work will substantially benefit the United States in the future.[3]

1. Sustained National or International Acclaim

When filing a petition for a person with extraordinary ability, the petitioner must submit evidence that the person has sustained national or international acclaim and that the person's achievements have been recognized in the field of expertise.[4] In determining whether the beneficiary has enjoyed "sustained" national or international acclaim, the officer should consider that such acclaim must be maintained.[5] However, the term sustained does not imply an age limit on the beneficiary. A beneficiary may be very young or early in his or her career and still be able to show sustained acclaim. There is also no definitive time frame on what constitutes sustained.

If a person was recognized for a particular achievement, the officer should determine whether the person continues to maintain a comparable level of acclaim in the field of expertise since the person was originally afforded that recognition. A person may, for example, have achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim thereafter.

2. Continuing to Work in the Area of Expertise

To qualify as a person with extraordinary ability, the beneficiary must intend to continue to work in the area of his or her expertise.[6]

The officer may encounter instances where it is difficult to determine whether the person’s intended employment falls sufficiently within the bounds of his or her area of extraordinary ability. Some of the most problematic cases are those in which the beneficiary’s sustained national or international acclaim is based on his or her abilities as an athlete, but the beneficiary’s intent is to come to the United States and be employed as an athletic coach or manager. Competitive athletics and coaching rely on different sets of skills and in general are not in the same area of expertise. However, many extraordinary athletes have gone on to be extraordinary coaches.

Therefore, in general, if a beneficiary has clearly achieved recent national or international acclaim as an athlete and has sustained that acclaim in the field of coaching or managing at a national level, officers can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that USCIS can conclude that coaching is within the beneficiary’s area of expertise.

Where the beneficiary has had an extended period of time to establish his or her reputation as a coach beyond the years in which he or she had sustained national or international acclaim as an athlete, depending on the specific facts, officers may place heavier, or exclusive, weight on the evidence of the beneficiary’s achievements as a coach or a manager.

3. Entry to Substantially Benefit the United States

To qualify as a person with extraordinary ability, the person’s entry must substantially benefit the United States in the future.[7] Although neither the statute nor the regulations specifically define the statutory phrase “substantially benefit,” it has been interpreted broadly.[8]

Whether the petitioner demonstrates that the person’s employment meets this requirement requires a fact-dependent assessment of the case. There is no standard rule as to what will substantially benefit the United States. In some cases, a Request for Evidence (RFE) may be appropriate if an officer is not yet satisfied that the petitioner has met this requirement.

B. Evidence of Extraordinary Ability

The regulations describe various types of evidence that the petitioner must submit in support of a petition as documentation of the beneficiary’s extraordinary ability.[9] In general, the petitioner must submit evidence that:

  • The person has sustained national or international acclaim; and

  • The person’s achievements have been recognized in the field of expertise.

This initial evidence must include either evidence of a one-time achievement (for example, a major internationally recognized award, such as the Nobel Prize) or at least three of the types of evidence listed in the regulations.[10]

The evidence provided in support of the petition need not specifically use the words "extraordinary." Rather, the material should be such that it is readily apparent that the person's contributions to the field are qualifying. Also, although some of the regulatory language relating to evidence occasionally uses plurals, it is entirely possible that the presentation of a single piece of evidence in a specific evidentiary category may be sufficient.

On the other hand, the submission of voluminous documentation may not contain sufficient persuasive evidence to establish the beneficiary’s eligibility. The evidence provided in support of the petition must ultimately establish that the beneficiary "is one of that small percentage who have risen to the very top of the field of endeavor."[11]

1. Letters of Endorsement

Many petitions to classify a person with extraordinary ability contain letters of endorsement. Letters of endorsement, while not without weight, should not form the cornerstone of a successful claim for this classification. Rather, the statements made by the witnesses should be corroborated by documentary evidence in the record. The letters should explain in specific terms why the witnesses believe the beneficiary to be of the caliber of a person with extraordinary ability. Letters that merely reiterate USCIS’ definitions relating to this classification or make general and expansive statements regarding the beneficiary and his or her accomplishments are generally not persuasive.

The relationship or affiliation between the beneficiary and the witness is also a factor the officer should consider when evaluating the significance of witnesses’ statements. It is generally expected that one whose accomplishments have garnered sustained national or international acclaim would have received recognition for his or her accomplishments well beyond the circle of his or her personal and professional acquaintances.

In some cases, letters from others in the beneficiary’s field may merely make general assertions about the beneficiary, and at most, indicate that the beneficiary is a competent, respected figure within the field of endeavor, but the record lacks sufficient, concrete evidence supporting such statements. These letters should be considered, but do not necessarily show the beneficiary’s claimed extraordinary ability.

2. Two-Step Analysis of Evidence

Officers should use a two-step analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for classification as a person with extraordinary ability.[12]

Petition for Extraordinary Ability Classification: Overview of Two-Step Evidentiary Review

Step 1

Assess whether evidence meets regulatory criteria: Determine, by a preponderance of the evidence, which evidence submitted by the petitioner objectively meets the parameters of the regulatory description that applies to that type of evidence (referred to as "regulatory criteria").

Step 2

Final merits determination: Evaluate all the evidence together when considering the petition in its entirety for the final merits determination, in the context of the high level of expertise required for this immigrant classification.

Assess Whether Evidence Meets Any Regulatory Criteria

The first step of the evidentiary review is limited to determining whether the evidence submitted with the petition meets the regulatory criteria.[13] The evidence must be comprised of either a one-time achievement (that is, a major, internationally recognized award) or at least three of the ten regulatory criteria.[14] The officer should apply a preponderance of the evidence standard when making this determination.

For purposes of the first step of the analysis, officers should consider the quality and caliber of the evidence to determine whether a particular regulatory criterion has been met, to the extent the criterion has qualitative requirements.[15] Officers should not yet make a determination regarding whether or not the person is one of that small percentage who have risen to the very top of the field or if the person has sustained national or international acclaim.[16]

Appendix: Extraordinary Ability Petitions - First Step of Reviewing Evidence [6 USCIS-PM F.2, Appendices Tab] describes the limited determinations the officer should make in the first step of the analysis to determine whether the person has met the applicable evidentiary criteria, including any qualifying comparable evidence.[17]

Notably, the evidence evaluated in this step is also reviewed in the next step where the officer must determine whether the person is one of that small percentage who has risen to the very top of the field of endeavor, and that he or she has sustained national or international acclaim.

However, objectively meeting the regulatory criteria in the first step alone does not establish that the person in fact meets the requirements for classification as a person with extraordinary ability.[18]

For example:

  • Participating in the judging of the work of others in the same or an allied field of specialization alone, regardless of the circumstances, should satisfy the regulatory criteria in the first step of the analysis. However, the second step requires the officer to evaluate the person's participation to determine whether it was indicative of the person being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.

  • Publishing scholarly articles in professional or major trade publications or other major media alone, regardless of the caliber, should satisfy the regulatory criteria in the first step of the analysis. However, the second step requires the officer to evaluate the person's publications to determine whether they were indicative of the person being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.

The question of whether the person is one of that small percentage who have risen to the very top of the field of endeavor and enjoys sustained national or international acclaim should be addressed in the second step of the analysis (final merits determination). In the first step, the officer is only required to determine if the evidence objectively meets the regulatory criteria.

Final Merits Determination

Meeting the minimum requirement of providing required initial evidence does not, in itself, establish that the person in fact meets the requirements for extraordinary ability classification.[19] As part of the final merits determination, the quality of the evidence should also be considered, such as whether the judging responsibilities were internal and whether the scholarly articles (if inherent to the occupation) are cited by others in the field.

In the second step of the analysis, the officer should evaluate the evidence together and consider the petition in its entirety to make a final merits determination of whether or not the petitioner has demonstrated that the person has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that the person is one of that small percentage who has risen to the very top of the field of endeavor. The officer applies a preponderance of the evidence standard when making this determination.

An officer cannot predetermine the kind of evidence he or she thinks the person should be able to submit and deny the petition if that particular type of evidence (whether one of the prescribed types[20] or comparable evidence[21]) is absent. For example, an officer may think that if a person is extraordinary, there should be published articles about the person and his or her work. However, an officer cannot deny the petition because no published articles were submitted, so long as the petitioner has submitted evidence meeting the three qualifying criteria that demonstrates the person is in fact extraordinary. Approval or denial of a petition must be based on the type and quality of evidence submitted rather than assumptions about the failure to address different criteria.

While a person may be stronger in one particular evidentiary area than in others, the overall impression should be that he or she is extraordinary. If the officer determines that the petitioner has failed to demonstrate eligibility, the officer should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific reasons as to why the officer concludes that the petitioner has not demonstrated by a preponderance of the evidence that the person has extraordinary ability.[22] As with all adjudications, if an officer believes that the facts stated in the petition are not true, and can articulate why in the denial, then the officer denies the petition and explains the reasons in the written denial.[23]

If requesting additional evidence is appropriate, officers should provide some explanation of the deficiencies in the evidence already submitted and, if possible, examples of persuasive evidence that the petitioner might provide to corroborate the statements made in the petition. If a petitioner has submitted evidence that he or she believes establishes the person's extraordinary ability, merely restating the evidentiary requirements or stating that the evidence submitted is insufficient does not clarify to the petitioner how to overcome the deficiencies.

3. Evaluating Petitions Filed on Behalf of O-1 Nonimmigrants

An officer might encounter a case where a petition is filed on behalf of a person who was previously classified as an O-1 nonimmigrant with extraordinary ability, or extraordinary achievement in the case of persons in the motion picture and television industry.[24] Though the prior approval of an O-1 petition may be a relevant consideration in adjudicating an immigrant petition for a person with extraordinary ability, it is not determinative. Eligibility as an O-1 nonimmigrant does not automatically establish eligibility for immigrant extraordinary ability classification.

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 nonimmigrant classification has different definitions and standards for persons in the arts and the motion picture and television industry when compared to the definition and standard set forth for the immigrant with extraordinary ability.

For example, a person in the arts may have extraordinary ability under the O-1 category because he or she has “distinction,” which is the definition for a nonimmigrant with extraordinary ability in the arts; but does not meet the definition for “extraordinary ability” according to the immigrant criteria, which is that he or she is among the small percentage at the very top of the field.

Notwithstanding the fact that each petition must be adjudicated on its own merits, some courts have asked USCIS to provide an explanation as to why, if the person had previously been classified in a roughly analogous nonimmigrant category, USCIS has determined that the person is not eligible for classification in the employment-based immigrant visa classification in question.

For this reason, where possible, officers issuing denials in such cases should provide a brief discussion as to why, notwithstanding the previous O-1 nonimmigrant visa petition approval, the petitioner has failed to meet its burden to establish the beneficiary’s eligibility for approval of the immigrant petition for classification as a person with extraordinary ability.

Footnotes


[^ 1] See INA 203(b)(1)(A). See 8 CFR 204.5(h).

[^ 2] See 8 CFR 204.5(h)(5). See 8 CFR 204.5(h)(1) (providing that “[a]n alien, or any person on behalf of the alien,” may file the petition).

[^ 3] See INA 203(b)(1)(A)(ii)-(iii).

[^ 4] See INA 203(b)(1)(A)(i). See 8 CFR 204.5(h)(3).

[^ 5] According to Black's Law Dictionary (11th ed. 2019), the definition of sustain is "to support or maintain, especially over a long period of time . . . To persist in making (an effort) over a long period of time."

[^ 6] See INA 203(b)(1)(A)(ii). See 8 CFR 204.5(h)(5).

[^ 7] See INA 203(b)(1)(A)(iii).

[^ 8] See Matter of Price (PDF), 20 I&N Dec. 953 (Assoc. Comm. 1994) (golfer of beneficiary’s caliber will substantially benefit prospectively the United States given the popularity of the sport).

[^ 9] See 8 CFR 204.5(h)(3)-(4).

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

[^ 11] See 8 CFR 204.5(h)(2).

[^ 12] See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).

[^ 13] See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).

[^ 14] See 8 CFR 204.5(h)(3).

[^ 15] For example, in evaluating an award submitted under 8 CFR 204.5(h)(3)(i), it is necessary to consider the level of recognition the award holds to determine whether it is “nationally or internationally recognized,” consistent with the requirements of the criterion. However, evidence that the beneficiary’s work was displayed at an artistic exhibition alone, regardless of caliber or significance, would satisfy the requirements of 8 CFR 204.5(h)(3)(vii).

[^ 16] See Kazarian v. USCIS, 596 F.3d 1115, 1122 (9th Cir. 2010).

[^ 17] See 8 CFR 204.5(h)(3).

[^ 18] See INA 203(b)(1)(A).

[^ 19] As described in INA 203(b)(1)(A).

[^ 20] See 8 CFR 204.5(h)(3).

[^ 21] See 8 CFR 204.5(h)(4).

[^ 22] As described in INA 203(b)(1)(A).

[^ 23] See INA 204(b).

[^ 24] For more information on this classification, see Volume 2, Nonimmigrants, Part M, Nonimmigrants of Extraordinary Ability or Achievement (O) [2 USCIS-PM M].

Current as of November 23, 2021