Insight

Trends in EB1 Self-Sponsored Extraordinary Ability Permanent Residence Cases for Researchers

Both the “mirror test” and the USCIS regulatory standard impose exacting standards subject to interpretation.

EB1 Self-Sponsored Extraordinary Ability Perm
Douglas J. Halpert

Douglas J. Halpert

January 12, 2018 12:07 PM

In the original Brothers Grimm story, "Snow White," the queen asks, “Mirror, mirror, on the wall: who in this land is fairest of all?”

The queen, enamored of her own beauty, is shocked and upset when the mirror responds that someone else, Snow White, is a thousand times fairer than her.

There is a parallel between this question and the U.S. Citizenship and Immigration Services (USCIS) adjudication of employment-based first (EB1) extraordinary ability immigrant petitions, which, if approved, enable foreign nationals to achieve permanent resident status in the United States.

Both the “mirror test” and the USCIS regulatory standard impose exacting standards subject to interpretation.

Unlike in "Snow White" where the mirror plays the judge, USCIS officers in the EB1 unit decide whether the qualifications of beneficiaries meet the elite standard. Specifically, there are two major tests to establish that one’s qualifications merit an approval in the immigrant category reserved for those with “extraordinary ability.”

First, USCIS decides whether the foreign national has sustained national or international acclaim in the claimed field of expertise by requiring submission of a certain configuration of evidence. The foreign national can submit evidence of a one-time achievement that is a major, internationally recognized award, such as a Nobel Prize. Of course, most beneficiaries have not won a Nobel Prize. So the bulk of EB1 beneficiaries must submit evidence in at least three evidentiary categories out of a list of eight. The most common categories utilized by researchers include proof of authorship of scholarly articles in peer-reviewed, internationally circulated journals; serving as a reviewer or editor who judges the work of others; and making original scientific or scholarly contributions of major significance in one’s field.

Second, even if one establishes that one has submitted evidence in at least three categories, the petitioner bears the burden of proving attainment of a level of expertise placing one amongst a small percentage that has risen to the very top of the field of endeavor.

Scientists, professors, and those engaged in other research-oriented occupations typically have at least a Ph.D. Many also have a handful or more of publications, some as first author. And some also have reviewed papers for journals at one time or another.

It is not uncommon for research-oriented professionals interested in permanent residence to regard themselves as EB1 worthy. In their view, they hold a Ph.D., have many publications, mostly from during their doctoral years, which contain original findings, and also have conducted reviews for some journals whose stated mission is to publish significant findings. Technically, they may be correct that they have a colorable claim that their evidence arguably fits into three evidentiary categories. In the past, USCIS often did approve a number of cases with this profile.

However, the Buy American, Hire American Executive Order of the Trump administration has impacted USCIS decision-making across the full spectrum of cases this past year.

This includes a trend of USCIS more forcefully challenging self-sponsored EB1 cases both in terms of whether evidence is sufficient to fit within a given evidentiary category (the three out of eight test) and that the evidence establishes extraordinary ability.

Recent request for evidence (RFE) challenges for research-oriented professionals focus primarily on two areas. First, many self-sponsored EB1 petitioners rely on proving original contributions of major significance for their third category of evidence. USCIS is more frequently challenging whether contributions are of major significance by demanding proof that the beneficiary’s work has been commercialized, been the subject of a patent application, or has been the subject of some other objective manifestation of “major” significance. USCIS is increasingly disinclined to accept solely testimonials of other experts in the field to satisfy this category. Second, USCIS is much more inclined to aggressively contest whether the overall evidence establishes sustained acclaim and that the researcher is in the top few percentile. Sometimes the RFE comments that, while the foreign national is talented, very few can meet that USCIS’ lofty criteria and that many Ph.D.’s will necessary meet some of the categorical criteria by nature of having been in Ph.D. programs—but the standard is such that relatively few Ph.D.’s should actually meet the EB1 criteria.

Those researchers who amass superior objective evidence in these areas prior to case filing are more likely to have the mirror of the USCIS adjudicator decide to issue an EB1 approval notice determining that they are amongst the fairest petitioners of them all.

----------------------------

Douglas Halpert, Esq. is a partner at Hammond Law Group LLC. A frequent author and lecturer, Mr. Halpert has been practicing immigration law for over 29 years and has handled extraordinary ability immigrant petition cases since the category was created by the Immigration Act of 1990.

Related Articles

Make the Workforce American Again


by Michael J. Wildes

The H-1B visa program allows U.S. companies to temporarily employ foreign workers in specialty occupations, including jobs in technology, engineering, science, architecture, accounting, and business.

Make the Workforce American Again

H-1B Applications: Proactive Steps in 2018


by Brad J. Hendrick

Last year, USCIS received approximately 199,000 applications for the 85,000 H-1B visas allocated each year.

H-1B Applications

Interagency Cooperation: Raising the Bar for Immigration Compliance


by Kathleen Campbell Walker

Stove-piped legal representation is not advisable (e.g., only focusing on one agency segment or one portion of a filing process).

Immigration Compliance

The Building of a Virtual Border Wall


by Tammy Fox-Isicoff

This virtual wall has not just adversely impacted undocumented immigrants; it has adversely impacted those seeking legal immigrant and nonimmigrant status and those wishing to extend nonimmigrant status.

Virtual Border Wall

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background