Evidential Standards Provided by AFM

The EB1A Evidential Standards Provided by AFM

On December 22, 2010, USCIS issued the final Policy Memorandum regarding evaluation of evidence submitted with certain form I-140 employment-based immigrant petitions, including EB1A petitions for alien workers with extraordinary ability. The Policy Memorandum updated the evidential standard set forth in the Adjudicator’s Field Manual (AFM) and provide a more detailed and consistent guidance on how to evaluate evidence submitted with these petitions. We believe it will be very helpful for petitioners to understand the most undated evidential standards to preempt any request for evidence (RFE) after submission. Below please see detailed explanation regarding the new EB1A evidential standard set forth in the updated AFM.

Q: What is the Adjudicator’s Field Manual (AFM)?

The USCIS Adjudicator’s Field Manual (AFM) details USCIS policies and procedures for administering immigration benefits. In the relevant AFM chapter that governs EB1A adjudication, the AFM provides guidance to USCIS officers who adjudicate these employment-based petitions on what adjudicative approach they should use when evaluating evidence submitted in support of the petition.

Q: What must be shown to be successful on an EB-1(a) extraordinary ability case?

A: USCIS and INS have consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant classifications as aliens of extraordinary ability. In order to qualify for admission in this classification, an alien must, among other things, demonstrate sustained national or international acclaim and that his or her achievements have been recognized in the alien’s field of expertise in accordance with INA 203(b)(1)(A). Qualification under this classification is reserved for the small percentage of individuals at the very top of their fields of endeavor. 8 CFR 204.5(h)(2).

Q: How do I prove that I have a “level of expertise indicating that he or she has risen to the top of the field of endeavor”?

A: The regulation at 8 CFR 204.5(h)(3) provides that a petition for an alien of extraordinary ability must be accompanied by initial evidence that the alien has achieved the requisite acclaim and recognition in the alien’s field of expertise. Such evidence must be either a one-time achievement (that is, a major, internationally recognized award) or at least three out of the ten other types of evidence listed in the regulation (e.g., scholarly articles, high salary, commercial successes).

Q: What are the ten types of evidence listed in 8 CFR 204.5(h)(3)?

A: If you do not have the statutory one-time achievement, then you must establish at least three out of the following:

• Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor. 8 CFR 204.5(h)(3)(i).
• Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields. 8 CFR 204.5(h)(3)(ii).
• Published material about the alien in professional or major trade publications or other major media relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation. 8 CFR 204.5(h)(3)(iii).
• Evidence of the alien’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. 8 CFR 204.5(h)(3)(iv).
• Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field. 8 CFR 204.5(h)(3)(v).
• Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media. 8 CFR 204.5(h)(3)(vi).
• Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases. 8 CFR 204.5(h)(3)(vii).
• Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation. 8 CFR 204.5(h)(3)(viii).
• Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to other in the field. 8 CFR 204.5(h)(3)(ix).
• Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. 8 CFR 204.5(h)(3)(x).

Q: If I cannot meet three of the ten requirements outlined above, does that mean I do not qualify for an EB-1(a) petition?

A: Not necessarily. 8 CFR 204.5(h)(4) states that if the evidence required in 8 CFR 204.5(h)(3) does not readily apply to the beneficiary’s occupation, then the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

The following are examples of where 8 CFR 204.5(h)(4) might apply.

• An alien beneficiary who is an Olympic coach whose athlete wins an Olympic medal while under the alien’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).

It is important to note that there is no comparable evidence for the one-time achievement of a major, internationally recognized award.

Q: How will an immigration officer evaluate my petition?

A: The immigration officer must first determine whether the petition is supported by evidence of a one-time achievement (that is, a major, internationally recognized award). If it is not, then the officer must make a determination that is limited to whether the evidence submitted in the petition meets at least three criteria at 8 CFR 204.5(h)(3). In doing so, the immigration officer may consider the quality and caliber of the evidence to determine whether a particular regulatory criterion has been met

Q: Can one piece of evidence satisfy more than one of the criteria set forth in 8 CFR 204.5(h)(3)?

A: In certain cases, evidence submitted to establish one criterion may be sufficient to satisfy more than one of the criteria set forth in 8 CFR 204.5(h)(3). Similarly, in some cases, one type of “comparable” evidence submitted in connection with 8 CFR 204.5(h)(4) might satisfy more than one of the criteria set forth in 8 CFR 204.5(h)(3).

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(i) (National or International Awards)?

A: The immigration officer will determine if the alien was the recipient of the prize(s) or award(s). The description of this type of evidence in the regulation provides that the focus should be on the alien’s receipt of the awards or prizes, as opposed to his or her employer’s receipt of the awards or prizes.

The immigration officer will also determine whether the alien 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).

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(ii) (Membership)?

A: The immigration officer will determine if the association for which the alien 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 alien 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 individuals to be nominated by an academy member, and membership is ultimately granted based upon recognition of the individual’s distinguished achievements in original research.

Associations may have multiple levels of membership. The level of membership afforded to the alien must show that in order to obtain that level of membership, the alien 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 alien’s membership in the associations was not based on outstanding achievements in the field include, but are not limited to, instances where the alien’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.

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(iii)(Published Material)?

A: The immigration officer will determine whether the published material was related to the alien and the alien’s specific work in the field for which classification is sought. The published material should be about the alien 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. Note that marketing materials created for the purpose of selling the alien’s products or promoting his or her services are not generally considered to be published material about the beneficiary.

The immigration officer will also determine whether the publication qualifies as a professional publication or major trade publication or a major media publication. Evidence of published material in professional or major trade publications or in other major media publications about the alien should establish that the circulation (on-line or in print) is high compared to other circulation statistics and show who the intended audience of the publication is, as well as the title, date and author of the material.

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(iv) (Judging Activities)?

A: The immigration officer will determine whether the alien 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 alien has not only been invited to judge the work of others, but also that the alien
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 alien 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 an individual candidate’s body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(v) (Original Contributions of Major Significance)?

A: The immigration officer will determine whether the alien has made original contributions to the field and whether those contributions are of major significance or not. USCIS 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 which cite the alien’s work as authoritative in the field, may be probative of the significance of the alien’s contributions to the field of endeavor.

USCIS officers should take into account the probative analysis that experts in the field may provide in opinion letters regarding the significance of the alien’s contributions in order to assist in giving an assessment of the alien’s original contributions of major significance. That said, not all expert letters provide such analysis. Letters that specifically articulate how the alien’s contributions are of major significance to the field and its 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.

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(vi)(Scholarly Articles)?

A: The immigration officer will determine whether the alien 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”). Learned persons include all persons having profound knowledge of a field.

The immigration officer will also determine whether the publication qualifies as a professional publication or major trade publication or a major media publication. Evidence of published material in professional or major trade publications or in other major media publications should establish that the circulation (on-line or in print) is high compared to other circulation statistics and who the intended audience of the publication is.

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(vii) (Displayed Artistic Work Products)?

A: The immigration officer will determine whether the work that was displayed is the alien’s work product. Thus, the description of this type of evidence in the regulation provides that the work must be the alien’s.

The immigration officer will also determine whether the venues (virtual or otherwise) where the alien’s work was displayed were artistic exhibitions or showcases.

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(viii) (Leading or Critical Roles)?

A: The immigration officer will determine whether the alien has performed in leading or critical roles for organizations or establishments. In evaluating such evidence, USCIS officers must examine whether the role is (or was) leading or critical.

If a leading role, the evidence must establish that the alien 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 alien 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 alien’s performance in the role is (or was) important in that way. It is not the title of the alien’s role, but rather the alien’s performance in the role that determines whether the role is (or was) critical.

This is one criterion where letters from individuals with personal knowledge of the significance of the alien’s leading or critical role can be particularly helpful to USCIS officers in making this determination as long as the letters contain detailed and probative information that specifically addresses how the alien’s role for the organization or establishment was leading or critical. Note: 8 CFR 204.5(g)(1) states that evidence of experience “shall” consist of letters from employers.

The immigration officer will also determine whether the organization or establishment has a distinguished reputation. USCIS officers should keep in mind that 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.

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(ix) (High Salary)?

A: The immigration officer will determine whether the alien’s salary or remuneration is high relative to the compensation paid to others working in the field. Evidence regarding whether the alien’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. Three web sites that may be helpful in evaluating the evidence provided by the petitioner are:

• The Bureau of Labor Statistics (BLS): http://www.bls.gov/bls/blswage.htm;
• The Department of Labor’s Career One Stop website: http://www.careeronestop.org/SalariesBenefits/Sal_default.aspx; and
• The Department of Labor’s Office of Foreign Labor Certification Online Wage Library: http://www.flcdatacenter.com.

Aliens 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.

Q: Are there any special considerations for evidence submitted under 8 CFR 204.5(h)(3)(x) (Commercial Successes in Performing Arts)?

A: The immigration officer will determine whether the alien has enjoyed commercial successes in the performing arts. This criterion focuses on volume of sales and box office
receipts as a measure of the alien’s commercial success in the performing arts. Therefore, the mere fact that an alien 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 alien’s commercial success relative to others involved in similar pursuits in the performing arts.

Q: If I meet at least three of the ten requirements, does that mean that I automatically qualify for an EB-1(a) petition?

A: No. Meeting the minimum requirement of providing evidence relating to at least three criteria does not, in itself, establish that the alien in fact meets the requirements for classification as an alien of extraordinary ability under Section 203(b)(1)(A) of the INA. In making this determination, recognizing that the quality of the evidence, such as whether the judging responsibilities were internal and whether the scholarly articles (if pertinent to the occupation) are cited, is an appropriate consideration in the final merits determination. In addition, the alien’s performance at the so-called major-league level does not automatically establish that he or she meets the extraordinary ability standards. Finally, Congress intended that in the absence of a one-time achievement, an alien could qualify for the classification based on a “career of acclaimed work.”

Q: Can I self-petition if I do not have a job offer?

A: An I-140 petition filed on behalf of an alien with extraordinary ability does not need to be supported by a job offer; therefore, the alien may “self-petition” for the classification. See 8 C.F.R. 204.5(h)(5). The alien must demonstrate, however, that he or she intends to continue work in the field of his or her extraordinary ability. Section 203(b)(1)(A) of the INA, which defines an alien of extraordinary ability, also requires that the alien’s work substantially benefit prospectively the United States. Although the regulations do not specifically define this statutory term, it has been interpreted broadly. Whether the petitioner demonstrates that the alien’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 additional evidence may be necessary if you are not yet satisfied that the petitioner has satisfied this requirement. In all cases, however, the petitioner must show that the beneficiary intends to continue work in his or her area of expertise.

Q: Does the evidence I submit need to use the word “extraordinary”?

A: 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 alien’s contributions to the field are qualifying.

Also, although some items in the regulatory lists occasionally use plurals, as indicated above, it is entirely possible that the presentation of a single piece of evidence in that category may be sufficient. On the other hand, the submission of voluminous documentation may not contain sufficient persuasive evidence to establish the alien beneficiary’s eligibility. The evidence provided in support of the petition must establish that the alien beneficiary “is one of that small percentage who have risen to the very top of the field of endeavor.”

An alien may be stronger in one particular evidentiary area than in others; however, the overall impression should be that he or she is extraordinary. The immigration officer cannot predetermine the kind of evidence he or she thinks the alien should be able to submit, and deny the petition if that particular type of evidence (whether one of the types listed in 8 CFR 204.5(h)(3) or “comparable evidence” under 8 CFR 204.5(h)(4)) is not there. For example, the immigration officer may think that if an alien is extraordinary, there should be published articles about the alien and his or her work. However, the immigration officer cannot deny the petition because no published articles were submitted, if evidence meeting three qualifying criteria has been submitted that demonstrates he or she is in fact extraordinary. Approval or denial of a petition must be based on the type and quality of evidence that is submitted, not on evidence that the immigration officer thinks should be there.

Q: Should I include letters of endorsement?

A: Letters of endorsement, while not without weight, should not form the cornerstone of a successful claim for the EB-1(a) petition. 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 extraordinary ability. Letters that merely 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 to consider when evaluating the significance of the witnesses’ statements. It is generally expected that an individual 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, testimonials merely make general assertions about the alien, and at most, indicate that the alien is a competent, respected figure within the field of endeavor, but the authors fail to support such statements with sufficient concrete evidence. These letters will be considered, but do not necessarily show the beneficiary’s claimed extraordinary ability.

Q: What does it mean that my petition must be “accompanied by evidence that the alien has sustained national or international acclaim and that the alien’s achievements have been recognized in the field of expertise”?

A: Under 8 CFR 204.5(h)(3), a petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that the alien’s achievements have been recognized in the field of expertise. In determining whether the beneficiary has enjoyed sustained” national or international acclaim, bear in mind that such acclaim must be maintained. However, the word sustained does not imply an age limit on the beneficiary. A beneficiary may be very young 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 an alien was recognized for a particular achievement, the USCIS officer should determine whether the alien continues to maintain a comparable level of acclaim in the field of expertise since the alien was originally afforded that recognition. An alien may have achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim thereafter.