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FAQ: Extraordinary ability petitions
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Who can file a petition to classify someone as an alien of extraordinary ability?
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The regulations specifically provide that a petition may be filed by anyone:
"An alien, or any person on behalf of the alien, may file an I-140 visa petition for classification under section 203(b)(1)(A) of the Act as an alien of extraordinary ability in the sciences, arts, education, business, or athletics."
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Is a specific job offer required?
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No. Again, the regulations, at 8 CFR 204.5(h)(5) specifically provide that no job offer is required:
"No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States."
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How does the CIS define the term "extraordinary ability"?
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The CIS regulations, at 8 CFR 204.5(h)(2), define this term as follows:
"Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor."
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How does one prove "extraordinary ability"?
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The CIS regulations provide that a petitioner must prove that the beneficiary of the petition qualifies for this classification, through the submission of
(3) Initial evidence. A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award), or at least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) 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;
(iii) 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;
(iv) 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;
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
(4) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
In addition to this list, there are many other persuasive forms of evidence that may be submitted, depending upon the unique facts of the case.
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How difficult is it to get an approval in this category?
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It's certainly not easy, but if you are qualified, you should be able to have a petition approved on your behalf.. As with all of the other "labor certification waiver" cases, the single most important aspect of a petition is advocacy. If the facts are well presented and persuasively argued, a petition that meets the CIS criteria should be approved routinely. On the other hand, some petitions, with excellent facts behind them, are denied because they are not presented well. CIS examiners simply do not have time to sort through the documents offered in support of a petition and try to figure out what the petitioner is trying to argue. |
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What are the most common mistakes?
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Without a doubt, overdocumentation is the single most common mistake made by petitioners. CIS examiners have a limited amount of time to deal with each petition. They are not going to take time away from other petitions and give it to someone who has submitted a five inch thick petition. instead, they will take the same amount of time and, when they run out of time before they have read the whole thing, they will make a decision based on what they have seen. |
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How should a petition be presented?
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It is critical to submit only those documents (and parts of documents) that are essential to proving eligibility. They need to be arranged sensibly so that they can be found easily by the examiner. The argument must be both short and persuasive. It must reference the applicable law, previous cases, legislative intent, and the supporting facts. The argument must demonstrate conclusively that the beneficiary is entitled to the benefits sought. |
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Once a petition has been approved, may a beneficiary change jobs without losing eligibility?
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Definitely yes. Neither a job offer nor a specific employer is required at any point. The beneficiary must be able to prove that he or she will continue to work in the same area for which the petition was approved, but that is all. |
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