Nationally recognized immigration law expert Frank Symphorien, Managing Attorney for Immigration at Martinez Manglardi, PA in Orlando, Fl, has co-authored a paper on how lawyers can overcome current difficulties in winning EB-1 visas for clients.
The American Immigration Lawyers Association (AILA) published the paper, Strategic Considerations for Success in EB-1 Cases, as part of its latest edition of Immigration Practice Pointers in advance of the American Immigration Lawyers Association (AILA) Annual Immigration Law Conference in Orlando, where Symphorien participated in a panel discussion for immigration attorneys titled “How to Respond to Complicated H-1B & L-1 RFEs and Strategies after a Denial.”
Strategic Considerations for Success in EB-1 Cases
by Peter L. Ashman, Francisco Symphorien, Kalpana V. Peddibhotla, and Jonathan L. Moore
As backlogs for employment-based green cards continue to grow, there is an increasing demand for EB-1 filings, particularly from individuals born in China and India. Yet, U.S. Citizenship and Immigration Services (USCIS) has strict requirements and expectations for these filings and the types of evidence that can support them.
While each case and set of facts is unique, this practice pointer will outline several general strategic considerations in deciding which type of filing to pursue and in deciding what types of supporting evidence to use, particularly in non-traditional cases such as cases for artists/entertainers and individuals in business. As outlined below, carefully planning and consideration of these factors will maximize clients’ chances for EB-1 success.
DECIDING WHICH TYPE OF FILING TO PURSUE
The threshold strategic decision to make is what type of filing to pursue, including whether an EB- 1 filing is a client’s best option. [E.g., no EB-2 backlog unless from China/India, need for a quick approval, current qualifications/not yet extraordinary or outstanding, standards/proof required, etc].
EB-1A vs. EB-2 National Interest Waiver
Individuals of Extraordinary Ability
The EB-1A category would, at first glance, provide several advantages over most other categories. Individuals filing in the EB-1A category may do so without a petitioning sponsor or job offer. Another significant benefit is that USCIS may issue a decision within 15 calendar days if premium processing is sought, relieving significant pressure for a non-citizen petitioner and providing a quick resolution of a very important step in their journey to resident status. If the individual previously prepared evidence in support of an O-1 visa, the legal requirements are almost identical to the EB-1A requirements, which may facilitate a quick filing.
In practice, USCIS will generally scrutinize the EB-1A filing meticulously under AFM guidelines that are much more specific than the O-1 guidelines.1 Also, the O-1 Visa filing will be given no deference by USCIS in evaluating the EB-1A package.2
Although recently the EB-1A immigrant visa category has been retrogressed, presumably due to an unusually high number of immigrant visas issued in that category, conceptually, the pool of applicants should be limited to the most talented and unique individuals who are at the very top of their field.3
After Kazarian,4 USCIS adopted a two-step approach in evaluating EB-1A petitions.5 At step one, USCIS will evaluate whether the filing meets the regulatory criteria which includes a one-time achievement (a major international award) or at least three of the other enumerated criteria.6 At step two, USCIS will undertake a qualitative review of a totality of the evidence presented to determine if the petitioner is within the small “percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.”7 Thus, this category is generally intended for well-established individuals who have arrived at the top of their respective field.
EB-2, National Interest Waiver (NIW)
The EB-2 category has unique advantages as compared to the EB-1A category. EB-2 applicants may also self-petition and they need not have a job offer, although they must still file Form ETA- 750 Part B.89 One significant benefit over the EB-1A category is that it may be easier to document that the individual holds an advanced degree or is a person of exceptional ability than to meet the EB-1A “extraordinary ability” standard.10
Documenting an advanced degree is a relatively straight forward evidentiary showing, while the exceptional ability standard is less onerous than EB-1A “extraordinary ability.” There are at least two criteria in both NIW and EB-1A that, at first blush, sound very similar, but that are much easier to meet in the NIW context. For example, membership in professional associations is one of the factors, and you need not prove that the association requires outstanding achievements by their members as required in the EB-1A context. Similarly, recognition for achievements and significant contributions may be sufficient without a showing of major significance in the field.
Another benefit is that as of the date of the instant publication there are visas available in the EB- 2 category, while the EB-1 category is retrogressed by more than a year.11 Also, some of the evidence used for any O-1 visa may be readily adopted to address the Dhanasar National Interest Waiver standard. However, the EB-2 category is not eligible for premium processing at this time and processing times range between 6 and 12 months at best, according to USCIS published processing times.12
Applicants under the EB-2 category must either complete the labor certification process or request a National Interest Waiver (NIW).13 After proving the requisite advanced degree or threshold showing of exceptional ability, under Matter of Dhanasar,14 an individual seeking a national interest waiver must also show that (1) the proposed endeavor has substantial merit and national importance; (2) the individual is well-positioned to advance that endeavor; and (3) on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
Step 2, Kazarian Qualitative Analysis v. Dhanasar NIW
USCIS’s interpretation of Kazarian15 and the Administrative Appeals Office (AAO) decision in Matter of Dhanasar has presented practitioners with difficult strategic decisions on whether any individual client would most benefit from filing an EB-1A, and potentially engaging in a qualitative analysis per Kazarian, or filing an EB-2 and seeking to establish the newly redefined standard for an NIW filing. This has become particularly important in the present adjudications climate, which is marked by extreme scrutiny with respect to most immigration filings.
In the EB-1A context, recent adjudicative trends suggest that the AAO tends to focus principally on the first step threshold inquiry of the requisite three criteria while avoiding the second-step “qualitative analysis” from Kazarian.16 Adjudicators also seem to be ignoring the relevant guidance and adopting a qualitative analysis with respect to each of the individual criteria. For example, in several cases the AAO has pointed out that an individual criteria (e.g. authorship of scholarly articles) does not reflect that a particular applicant is at the very top of his field rather than making a threshold determination on whether the specific criteria has been met (i.e. has the applicant in fact authored scholarly articles?) and then making a step two qualitative assessment of the weight and significant of the evidence provided as a whole as suggested in Kazarian.
A full analysis of AAO decisions on NIWs is beyond the scope of this article, but this author’s sampling review of recent decisions from the AAO in the EB-2 National Interest Waiver context appears to show that while the exceptional ability standard is regularly sustained, AAO denials tend to focus on the second prong articulated in Dhanasar.17 Some of the decisions focus on whether an individual is well-positioned to advance a particular endeavor as the cause for a denial, particularly with regard to cases where there is no job offer.
Given the extended processing times for the AAO, combined with the lengthy process for appeals to the AAO, it is still too soon to make any definitive judgments on the supremacy of the Dhanasar requirements in National Interest Waiver case over the Kazarian EB-1A requirements.
EB-1A vs. EB-1B for Professors and Researchers
In the case of professors and researchers, practitioners also face strategic considerations with respect to which type of EB-1 filing to pursue: EB-1A for individuals of extraordinary ability, or EB-1B for outstanding professors and researchers. Specific considerations in several key areas are discussed below.
Current Employment and Ability/Willingness of Employer to Sponsor
The threshold consideration when evaluating these options is whether the individual has a qualifying job offer and, if so, whether the employer is able and willing to sponsor an EB-1B petition. An EB-1A petition does not require a job offer and can be a self-petition—the petition must provide “clear evidence” that the beneficiary will continue to work in his or her area of expertise, which can consist of evidence such as a letter from an employer or prospective employer, contracts, or a statement from the beneficiary outlining his or her plans for continuing to work in the field.18 This is typically a straightforward and easily satisfied requirement for professors and researchers in EB-1A cases.
Evaluating whether an EB-1B filing is possible is a more complicated, multi-step inquiry. The first step in this inquiry is whether there is a qualifying employer because, unlike an EB-1A, an EB-1B petition must be filed by a U.S. employer. The types of employers that are eligible to file an EB- 1B petition are U.S. universities and institutions of higher education, as well as departments, divisions, or institutes of private employers that employ at least three full-time researchers and that have achieved documented accomplishments in an academic field.19
Several strategic considerations come into play when a researcher is employed by a private employer. Practitioners must consider whether they can document the number of full-time researchers and specific research accomplishments of the sponsoring employer and the strength of this proof. This introduces an additional variable and potential element of risk, particularly for smaller employers such as newly-formed research startups, who may also face other issues with an EB-1B filing such as being able to demonstrate ability to pay. Notably, USCIS’s position is that a government agency does not qualify as a “private employer” for purposes of an EB-1B filing.20 Thus, researchers who are employed at government agencies or government research institutions would not be able to pursue an EB-1B filing unless that institution was a university or institution of higher education.
If there is a qualifying employer, the next step in the inquiry for a potential EB-1B filing is whether there is a qualifying job offer. If the employer is a university or institution of higher education, the job offer must be for a tenured or tenure-track teaching position or a “permanent research position,” which means a research position that is either tenured/tenure-track or on-going and not of fixed duration.21 If the employer is a qualifying private employer, the job offer must be for a permanent research position (i.e., tenured/tenure-track or ongoing and not of fixed duration).22
Importantly, even if the employer and job offer satisfy the legal requirements for an EB-1B, the institution may have policies governing whether it will sponsor EB-1B filings and, if so, for what types of positions. Practitioners who are not familiar with the researcher’s employer should inquire about these policies at the outset of any evaluation for a potential EB-1B filing.
It is also important to consider the beneficiary’s long-term career plans.23 Often, researchers may have their eyes on a position with another institution, or want the flexibility to pursue other positions in the future. In light of current EB-1 backlogs that could cause lengthy delays in the researcher’s ability to file an I-485 application and, therefore, to potentially benefit from portability, a researcher may not wish to tie their green card process to a specific employer, which would push towards an EB-1A filing.
Individual’s Area of Expertise
Another strategic factor to consider is the individual’s specific area of expertise. An EB-1B filing requires showing that the beneficiary is outstanding “in an academic field,” defined as “a body of specialized knowledge offered for study at an accredited United States university or institution of higher education.”24 By contrast, an EB-1A filing requires showing extraordinary ability in the “field of endeavor.”25
In certain cases, this distinction may provide more flexibility for strategically defining the field in an EB-1A filing than with an EB-1B filing. For example, an individual may be one of the leading researchers in a very specialized niche area within a broader field. That specialized area could potentially constitute the “field of endeavor” for an EB-1A filing, but unless it is possible to document that it is offered for study at U.S. universities/institutions of higher education, it could make an EB-1B filing more challenging if the researcher is not internationally recognized as outstanding in the broader academic field.26 This distinction could also be significant when the beneficiary is conducting research in an emerging field that is not yet offered for study.
Applicable Standard/Regulatory Factors
There are also distinctions in the overall standard and regulatory factors for each type of EB-1 filing that must be considered in conjunction with the researcher’s qualifications and achievements.
At a general level, the standard for an EB-1A filing is demonstrating that an individual “is one of that small percentage who have risen to the very top of the field of endeavor” and who has “sustained national or international acclaim.”27 This entails proof of either a major, international award like the Nobel Prize, or proof that the beneficiary satisfies at least three out of ten regulatory factors. An EB-1B filing, on the other hand, does not imply the same degree of comparison to others in the field, requiring a beneficiary to be “recognized internationally as outstanding in the academic field.”28 This can be shown by satisfying at least two out of six enumerated regulatory factors, rather than the three required for EB-1A.29
While the specific regulatory factors for demonstrating that individuals meet the respective standard largely involve the same types of proof, particularly for academic researchers, there are several notable distinctions to consider, including the following:
▪ Original Contributions: For an EB-1A filing, an individual’s contributions must be “original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.” An EB-1B filing requires only “original scientific or scholarly research contributions to the academic field”—i.e., there is not an explicit additional requirement to show that the original contribution was “of major significance.”30
▪ Publications: For an EB-1A filing, the factor relating to publications requires “authorship of scholarly articles in the field, in professional or major trade publications or other major media.” An EB-1B filing requires “authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.”31
▪ Publications About the Beneficiary/His or Her Work: For an EB-1A filing, published material must be “about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field.” An EB-1B filing requires only “[p]ublished material in professional publications written by others about the alien’s work in the academic field.”32
For many researchers, these distinctions may not have a substantial impact on the likelihood of success of either type of filing. However, they can potentially be significant depending on the individual’s background, such as when an individual has a career outside of academia before becoming a professor or researcher. For example, consider a current business professor who, before she began teaching/academic research, had a distinguished career founding and leading several successful startups, whose success was directly attributable to groundbreaking business models/strategies that she developed and implemented, and these models/strategies had a major impact on companies worldwide. She may have difficulty capturing these important achievements in an EB-1B filing for several reasons, including because they likely would not qualify as “original scientific or scholarly research contributions.” They would, however, fit squarely within the factors for an EB-1A filing.33
As this discussion demonstrates, choosing between an EB-1A or EB-1B filing for professors and researchers requires a detailed evaluation and discussion of a variety of factors in order to make a strategic decision about the best option.
STRATEGIC CONSIDERATIONS IN PROVING EXTRAORDINARY ABILITY FOR CERTAIN TYPES OF EB-1 CASES
With any EB-1 filing, the evidence that can be marshalled in support of the filing is critical. While the types of supporting evidence for researchers or those in academia are typically relatively straightforward (e.g., copies of publications, proof of citations, etc.), it can often be more challenging to determine how to prove that clients in other fields qualify for an EB-1. Two common types of cases where this can come up are cases involving artists/entertainers and individuals in business.
Justice Potter Stewart, when asked to define pornography, after indicating the difficulty in doing so, famously concluded that “I know it when I see it”.34 Few areas of immigration law draw more inconsistent results that Extraordinary Artists/Entertainers, but USCIS adjudicators seem to believe they know it when they see it. As long as two humans can differ in their appreciation of something as subjective as talent we can expect inconsistent outcomes notwithstanding the ten criteria set forth in 8 CFR §204.5(h)(3)(i)-(x). Then there is the Kazarian qualitative analysis that as mentioned above appears to be less of a factor in recent AAO decisions.
Few of us are fortunate enough to have Oscar or Grammy winning clients. We are more likely to have Paraguayan acrobats or the winner of season four of Moldova’s Got Talent. Finding evidence to support the contention that the alien has “sustained or international acclaim” is sometimes very challenging and requires a level of creativity that demonstrates the extraordinary ability of the successful attorney. The individual 10 criterion will not be discussed here, nor will another analysis of Kazarian. For an excellent article on the 10 criteria and Kazarian, please see Cyrus T. Mehta’s recent article in the premier issue of the AILA Law Journal.35
As a practice pointer, it seems wise to omit marginal evidence. Nobody cares that the applicant won a high school music festival or track medal, and including these in the application tends to cheapen the overall submission, and if that is all you have, better consider other options. You Tube video can be helpful, but have someone in a position to explain the significance of what the video portrays. A coach, or artistic director, or even a talent agent can interpret the rarity of a quadruple somersault on the trapeze. A lawyer shouldn’t even try. Lastly, and perhaps most significantly, when you receive a 14-page Request for Evidence be sure to argue Matter of Chawathe.36 Matter of Chawathe, once described as the AAO’s one-in-a-decade love letter to lawyers held that:
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant or petitioner has satisfied the standard of proof. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (discussing “more likely than not” as a greater than 50% chance of an occurrence taking place). If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition.
In this current hostile environment, and given the highly subjective nature of some types of evidence, reminding USCIS of the proper standard of proof may hopefully cause the adjudicator to be mindful of their obligation to evaluate our cases under the proper standard, rather than “I know it when I see it.”
Extraordinary Individuals in Business
Without a startup visa, the lack of predictability for EB-5 investors, the limitations of the E visa program, and the long backlogs for other employment-based immigrant categories especially for Indian and Chinese nationals, the EB-1A becomes a critical choice for startup founders and key personnel. According to the Center for American Progress, more than 40 percent of Fortune 500 companies in 2010 were founded by immigrants or their children, and generated more than $1.7 trillion in revenue and employed 3.6 million people in the United States.37 Further, a study from the National Foundation for American Policy, a non-partisan think tank, shows that immigrants started more than half of the current crop of U.S.-based startups valued at $1 billion or more.38
Foreign nationals seeking the EB-1A classification for business do not typically have some of the evidence that is often inherently available for scientists and researchers. For example, they may not have a lot of publications and citations or may not have been the judge of the work of others the way a post-doc might have by serving on a dissertation committee or as a reviewer of scientific publications.
Entrepreneur in Residence
USCIS seemed to have recognized the unique characteristics of startups and their founders when it created the Entrepreneur in Residence (EIR) program in 2012. The program provided hands-on training and collaboration between entrepreneurs, startup industry insiders and USCIS adjudicators. While USCIS has suspended the EIR program, adjudicators were trained to recognize the unique traits of startups and thus in turn evidence that may support an immigration petition, including the following types of evidence in support of establishing extraordinary ability:
- Evidence of significant funding;
- Contracts with substantial customers;
- Customer / Expert reference letters;
- Industry expert reference letters;
- Press articles;
- Part of a significant incubator program;
- Significant salary + shares (depending upon valuation)
With respect to the “original contribution” prong, typically if a startup is funded it becomes an argument that the startup is disruptive. A disruptive innovation is one that displaces existing technologies or norms, and through that disruption creates a new market, new norms, new trends. This business theory was first identified by Harvard Business School professor, Clayton M. Christensen.39 Professor Christenson recognized disruption as the start of a new trend with a high- risk and high reward philosophy. Some of the most famous examples of disruption include many products that are now part of our everyday life, such as, the personal computer which displaced the typewriter; email which has displaced writing letters; and cellphones which have largely displaced landlines. Venture capitalists often fund disruptive innovation,40 and thus to the extent that a founder’s startup is venture funded, you may be able to argue original contribution.
Evidence of significant funding may also satisfy the prong for receipt of nationally or internationally prizes or awards for excellence in the field. To establish this prong, the beneficiary would need to establish how their past accomplishments were the reason for this funding.41 It would also be critical to establish the selection criteria from the investors in providing this funding. Highly selective investors with significant or notable records of success will be best positioned to establish this prong. Similarly, being part of a significant incubator may also be deemed an award.
Contracts with substantial customers can also serve to establish the original contribution by the beneficiary’s startup. If large customers are implementing the product it can shore up the startup’s contribution as either disruptive or original.
The beneficiary may be able to establish a high salary by also including valuations of the company and their stock compensation.
With funding also comes press. These articles can be very useful in positioning the contributions by the startup to the overall field.
Finally, when representing startup entrepreneurs, it is critical not to overlook job creation as potential comparable evidence.42 The EB-1A category, unlike O-1, requires establishing that the candidate’s entry to the United States must “substantially benefit prospectively the United States.”43 Although EB-1 regulations do not specify what evidence meets this requirement, establishing job creation and other commercial benefits often can satisfy this requirement.
USCIS continues to scrutinize EB-1 filings. By making strategic decisions about the type of filing to pursue and the evidence to submit, practitioners will best position their clients for success and a green card in this category.
Copyright © 2019, American Immigration Lawyers Association. Reprinted, with permission, from Immigration Practice Pointers (2019–20 Ed.), AILA Education, http://agora.aila.org.
Francisco “Frank” Symphorien is the managing attorney for the immigration division at Martinez Manglardi, P.A., in Orlando, Florida. A Board Certified Specialist in Immigration and Nationality Law, he currently serves on the Florida Bar Immigration & Nationality Law Certification Committee. Martindale-Hubbell ranks Frank is AV-rated “Preeminent”, AVVO rates him “Superb,” and SuperLawyers calls him a Rising Star. Frank enjoys having a varied immigration law practice, handling all aspects of Immigration and Nationality Law with a particular emphasis on immigration-related complex litigation and federal court work.