(1)Know the EB-1 law and fully analyze and explain why you are submitting an evidence under one of the 10 criteria for EB-1

8 C.F.R 204.5(h)(3) indicates that an individual can establish sustained national or international acclaim through evidence of a one-time achievement (that is, a major, internationally recognized award). Barring the individual's recipient of such an award, the regulation outlines 10 criteria, at least three of which must be satisfied for an individual to establish the sustained acclaim necessary to qualify as an individual of extraordinary ability.

As a EB-1 Lawyer, we know that each of the 10 criteria must be fully analyzed or you will receive a Request for Evidence ( and "RFE" ) or worse, a denial of your petition.

The examining officer will be looking to you to prove your case under the "preponderance of evidence". However, under 8 C.F.R. 204(h)(4) if the evidence offered is not an exact match for the criteria, the petitioner can then offer other evidence which must be looked at under the "totality of evidence" standard.

EXAMPLE: Let's assume you have been the author of a number of scholarly articles on a particular subject, from which you have then designed a new product which has been widely praised, and have offered them as your evidence of the criteria evidence of the alien's original scientific, scholarly, artistic or business-related contributions of major significance in the field.

Much to your dismay, you receive a Request for Evidence and the officer states that your evidence does not demonstrate that the work is original, or significant. You then send a copy of a contract whereby the rights to the production of your design is picked up by a manufacturer which you believe will prove both the fact that this is an original idea as well as being significant.

But the case is denied, because the examining officer, although satisfied that your contract demonstrates the design to be original, is not however satisfied that it is significant. The denial letter explains that " though, through the contract, it is seen that another party has interest in the work, there is still no evidence of utilization. There is no evidence presented of people and/or companies purchasing or using the apparatus in any way".[taken from an actual denial of EB-1]

So each word in the 10 criteria under the EB-1category is important and should be fully analyzed. It would not be an exaggeration to state that each of the 10 criteria the subject of previous litigation and prior to embarking on an EB-1 petition, the petitioners fully familiarize themselves with what is actually required.

(2)The EB-1 examining officer is Not an expert in your field

I have often seen petitions and supporting documents where the petitioner assumes what is so familiar to them as an expert of extraordinary ability in their field is also familiar to the CIS officer who is reviewing the case.

If for example your area of expertise is nuclear physics, do not assume the officer is familiar with terms, and jargon in your area. As a matter of fact the Immigration Officer's Adjudicators Handbook clearly directs officers: In short, an adjudicator should strive to request the evidence needed for thorough, correct decision-making. An adjudicator should not "fish" for evidence.

(3)Put your best foot forward

I often see petitions where the petitioner has made an attempt to offer evidence for more than 3 criteria and in the process has failed to prove that he or she is an alien of extraordinary ability. Although it is fine to try to meet more than 3 criteria of the 10 criteria under the EB-1 categories, only do so if for each area you can meet the "preponderance of evidence" standard. It is better to not try to meet a category if your evidence in that category is incomplete, thin, unpersuasive or otherwise inadequate.

Also, sending hundreds of pages of your book, may add volume to your application but does not do anything to add to the approval chances of your case. Each item that you offer should be fully analyzed and only offered if it meets the requirements of one of the 10 criteria for EB-1 petitions for Aliens of Extraordinary Ability.

(4)As a "self petitioner" prove that your will be working in your area of expertise

The following is an excerpt from the Adjudicators Manual:

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.

As noted above, under 8 CFR 204.5(h)(5), the beneficiary must intend to continue in the area of his or her expertise. Note though that there are instances where it is difficult to determine whether the alien's intended employment falls sufficiently within the bounds of his or her area of extraordinary ability. Some of the most problematic cases are those where 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. 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/managing at a national level, adjudicators can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that we 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, adjudicators may place heavier, or exclusive, weight on the evidence of the beneficiary's acclaim as a coach or a manager.

(5)Make sure if you are offering Letters of Endorsement, they are backed up by other evidence

The following is again from the Adjudicating Officer's Manual:

Many E11 petitions contain letters of endorsement. Letters of endorsement, while not without weight, should not form the cornerstone of a successful claim for the E11 classification. 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 E11 caliber. Letters that merely reiterate USCIS' E11 definitions 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 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. You may find th at certain testimonials written by other individuals working in the alien's field of endeavor may be submitted as evidence. In some cases, such 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 should be considered, but do not necessarily show the beneficiary's claimed extraordinary ability.

As evident from the above, letters by themselves, although helpful, will not be sufficient to meet any of the criteria without more.

Our Law Offices in Los Angeles and Orange County California is ready to help.

Call us for a free evaluation of your case before you file.

818-382-3333 or 949-272-1199

For more information on whether you are qualified for an EB1 and other discussions on this subject go to EB1lawyer.com

The Orange County Internet law firm of Shawn S. Sedaghat is a boutique firm offering U.S. immigration and Nationality Law legal services to clients in Southern California, in Los Angeles county, Orange County, Riverside County, San Diego County; in cities including Sherman Oaks, Encino, Woodland Hills, West Hills, Calabasas, Van Nuys, Studio City, North Hollywood, Newport Beach, Los Angeles, San Diego, Irvine, Costa Mesa, Laguna Beach, Laguna Niguel, Huntington Beach, Santa Ana, Mission Viejo, Orange, Fountain Valley, Tustin, Anaheim, and Fullerton. For news on immigration litigation, immigration law, visit these blogs. Immigration Law Alert, EB-2 Attorney.