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Alien of Extraordinary Ability Case Approved in One Day 每 Analysis and Explanation

Law Offices of Yu & Associates

Question: Ms. Yu, we heard that your office does a lot of alien of extraordinary ability green card cases, and you even had one which was approved one day after it was submitted, is that right?

Attorney Yu: That's right. That case was for a scientist conducting biomedical research at a prominent research agency, and it was approved one day after it was submitted. Usually, extraordinary ability cases can take anywhere from one month to six months or even a year to be adjudicated; the average is about three to six months. One can expedite it with Premium Processing, in which case it usually takes about two weeks to get an answer. For this particular case, because of the applicant's personal situation, he needed a decision in a short period of time and insisted on Premium Processing, and to our surprise when we submitted the case, his EB1A case was approved by USCIS in one day.

Question: Why do you think this case was approved so quickly?

Attorney Yu: There are several reasons for this. The applicant's qualifications and materials were very strong, although not the strongest we've seen. In any case, even strong qualifications and materials to back it up won't necessarily lead to a successful case; how well the attorney handles the cases will also directly affect its success or failure. The attorney's organizational and writing skills play a key role in the process. In addition, luck also plays a role 每 what sort of immigration officer adjudicates the case can be decisive. Not every applicant can be as lucky as this one.

Question: At the moment, applying for EB-2 or EB-3 work visas through an employer seems very slow; you have to wait a long time for your priority date to become current. It seems that EB-1 is a faster route?

Attorney Yu: Right now, the priority date for EB-1 aliens of extraordinary ability is current, which means that once your immigration petition is approved, then you can immediately adjust status or get your green card. That said, the wait for EB-2 priority dates is mainly for applicants from mainland China and India; so applicants from, for instance, Hong Kong or Taiwan do not need to wait and can submit their application to adjust status as soon as their immigration petition has been approved.

Question: Is it true that the requirements for alien of extraordinary ability are very high?

Attorney Yu: The alien of extraordinary ability (EB-1A) visa category is an immigration pathway for applicants with outstanding achievements in areas such as science, art, education, business and sports. One must have certain specialized abilities and be able to prove that you are one of the top individuals in your field in order to qualify. Therefore, yes, the requirements are rather high. Simply put, if one has received an important prize such as a Nobel prize, then you do not need to submit any other proof; you can easily obtain an EB-1 visa based on such a prestigious prize. But most applicants are not quite at this level, so they must provide a variety of materials to US Citizenship and Immigration Services (USCIS) in order to prove that their achievements are outstanding and that they are among the top professionals in their field.

Question: Does an extraordinary ability petition need the employer's consent and support?

Attorney Yu: No. In order to apply for an extraordinary ability visa, all that's necessary is for the applicant to meet the requirements. He or she does not need a job offer or an employer's support, nor a labor certification; the applicant can submit the green card petition on his or her own.

Question: Now, this research scientist whose case was approved so quickly 每 was that because his case was especially strong?

Attorney Yu: Comparatively speaking, his case was pretty good, but from an objective point of view, the level where this client was is also not very difficult to achieve. For instance, this researcher's qualifications basically included invitations to review manuscripts for publishers, eight publications, which had been used by other researchers, reports on his research results in the scientific media, and membership in professional organizations with a high threshold for membership. With hard work, most researchers should be able to achieve these same qualifications.

Question: What about in the areas of the arts, education, sports or business 每 how high are the requirements to apply for an extraordinary ability visa?

Attorney Yu: In general, if the applicant can provide materials meeting 3 of the following 10 requirements, then he or she could apply for alien of extraordinary ability.

  • National or international awards for his or her outstanding achievements in the field;
  • Invitations to membership in distinguished professional organizations in the field;
  • Reports in professional periodicals or major media on the applicant and his or her important achievements in the field;
  • Proof of having served as a judge of the work of others in the field;
  • Significant original contributions to the field, including original creations and inventions;
  • Publications in professional periodicals or other major media or published books, as well as proof that the publications have been used by others or received critical acclaim;
  • Proof that his or her work has been exhibited in at least two national exhibitions;
  • Proof of having held a position of leadership or other significant position in the field, or having played a key role because of his or her outstanding reputation;
  • Commercial success in performing arts, such as high ticket sales or CD, DVD or other recording sales;
  • A salary or other remuneration much higher than others in the same field.

To conclude, an applicant for alien of extraordinary ability must show that his or her achievements in the field are outstanding and that he or she is at the top of the field. The applicant does not need to meet all of the requirements listed above, however; as long as he or she meets at least three of the requirements, then he or she can apply to immigrate as an alien of extraordinary ability.

Question: About how long does the application process for alien of extraordinary ability take?

Attorney Yu: The time it takes to prepare the case varies from case to case. The key factors are the cooperation between the attorney and the applicant, and the time it takes the applicant to collect all the needed documentation. It ranges from a few weeks to a few months. After the case has been prepared and submitted to USCIS, it usually takes them several months to evaluate it and make a decision; or if you use Premium Processing, then you can have the decision in 15 business days.

Question: This case that was approved so quickly, was it an extraordinary ability case (EB-1A) or an outstanding professor or researcher case (EB-1B)? I've heard that it's easier to get an EB-1B case approved, is that right?

Attorney Yu: That's a good question. In the preliminary stages of this case, we suggested that the client prepare for both EB-1A and EB-1B, and at the end we would decide which case was stronger and submit that one. If the cases had both been prepared, and the employer had been willing to support and able to provide the required materials from the employer, then we would have submitted the EB-1B petition, because the requirements for EB-1B are a little less strict than for EB-1A. But as we approached the final stages of preparation, the client's employer was still unwilling to cooperate, so there was no way to obtain the required documents from the employer. Fortunately, the client also met the requirements for EB-1A and was able to provide all the required documentation. So after discussing it with the client, we decided to submit the EB-1A petition, and it was immediately successful.

Question: For extraordinary ability cases, are research scientists and the like more likely to be quickly approved?

Attorney Yu: Not necessarily. The alien of extraordinary ability category isn't just meant for scientists and other researchers. Outstanding individuals in any field can apply, and USCIS isn't any more lenient toward any particular field.

Question: What about successful entrepreneurs? Some want to invest in the US, others want to come here for the sake of their children's education. Can they apply for green cards as aliens of extraordinary ability?

Attorney Yu: If the individual is actually extraordinarily talented and meets the requirements for this category, then of course he or she can apply. Outstanding businesspeople, artists, athletes, coaches, reporters and many other individuals only need to meet the requirements, and engage a knowledgeable attorney to organize the case and draft documents, and they can quickly make their dreams of immigrating to the US a reality. For instance, an outstanding businessperson could show that he or she has received an award for exceptional achievements in business, has served as the judge of professional activities, has been interviewed by the media, has held important posts in professional organizations, and so on in order to apply for immigration as an alien of extraordinary ability.

Question: What are the relative advantages of applying for extraordinary ability or for immigration through investment, for a businessperson?

Attorney Yu: If we consider the process and the result, then extraordinary ability is more advantageous. Even though a lot of documentation is required, the timeframe is shorter, and you're able to immediately obtain permanent residence without conditions. The advantage of immigration through investment is that you only need to prove that your funds were legally obtained; there are no other requirements for documentation. However, there is risk inherent in investment, and you don't get results right away 每 you must first apply for a conditional green card, and after two years you can apply to have the conditions removed to get the permanent green card. Not only that, but the program is so popular now, that you have to wait many years just to get a conditional green card.

Question: Once an extraordinary ability petition is approved, can your family members also immigrate to the US?

Attorney Yu: Once the applicant's petition is approved, the whole family can immigrate to the US (this includes the applicant's spouse and unmarried children under 21). The applicant's children can attend public schools in the US, including elementary and secondary schools as well as colleges and universities.


The above is a general introduction to immigration policies, and should not be construed as individual legal advice. For specific legal questions, please contact the Law Offices of Yu & Associates. Attorney Xiaohui (Sharon) Yu is a graduate of New York University School of Law, one of the top five law schools in the US, and has practiced law at some of the top firms in the US, UK and China.

Tel: 301-838-8986, Fax: 202-595-1918; E-mail: syu@yulegal.com, Address: 110 N. Washington St., Suite 328E, Rockville, MD 20850. (All rights reserved.)

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