By Licelle Cobrador, Esq.
New York – Immigration restrictions became top priority during the onset of the coronavirus pandemic in 2020. An invisible wall was built that hampered opportunities for countless eligible immigrants, including extraordinary ability/ EB-1A foreign nationals.
Requests for evidence and denial rates increased with the USCIS (also known as the Service) plainly applying a heightened standard. There was no change in the regulations to justify this; however, we deduce this was a leadership directive.
While we’ve been promised immigration reforms in 2021, any changes in the EB-1A adjudication structure have been enforced in a more evenhanded manner.
Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics may apply for the EB-1A green card. Such persons are not required to have a prospective U.S. employer sponsor, but they must be entering the U.S. to continue work in their chosen field, and their work must substantially benefit (prospectively) the United States.
Federal regulations define “extraordinary ability” as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top field of endeavor.” 8 C.F.R. § 204.5(h)(2). Initial evidence requirements need either: 1) evidence of a significant one-time achievement such as an Oscar, Emmy or a Grammy Award, a Nobel Prize, Pulitzer or an Olympic medal or 2) documentation that satisfies at least three out of the ten evidentiary criteria listed below.
Hypothetically, if Maria Ressa (first Filipino Nobel Prize laureate) or Hidilyn Francisco Diaz (first Filipino to win an Olympic gold medal) were to apply for this visa, they would mostly likely get approved, as they would meet the first requirement.
For those who have not won a major internationally recognized award, at least three of the following must be provided: 1) Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of expertise; 2) membership in an association that demands outstanding achievement as a condition of membership; 3) publication of work in major media, professional or trade publication; 4) judge of the work of others in the same or related field; 5) original contribution in field; 6) authorship of scholarly articles in the field of expertise; 7) display of work at showcases or artistic exhibitions; 8) critical or leading role at distinguished organizations; 9) high remuneration or salary compared to others; and 10) commercial success. Other comparable evidence may be presented if these ten are not readily applicable to the petitioner’s occupation. See 8 C.F.R. § 204.5(h)(3)(i)-(x).
Upon receipt of the above-mentioned prerequisite evidence, the Service will conduct a final merits determination. It will assess whether the totality of the record shows, by a preponderance of evidence, that the petitioner is part of that small percentage that has risen to the very top field of endeavor demonstrated by sustained national or international acclaim. See Kazarian v. USCIS, 596 F. 3d 1115 (9th Cir. 2012).
This is a self-petition. Not involving an employer or a specific job offer could be liberating. Further, a labor certification is not required saving the petitioner considerable time. Visas for EB-1A are current (Visa Bulletin for December 2021). This means immigrant visas are immediately available for all countries in this category. The path towards a green card would be quicker compared to other employment-based visas.
It bears stressing that the EB-1A visa is not limited to those who excel in the performing or visual arts. We have obtained approvals for several journalists, entrepreneurs, finance and legal professionals, educators, and athletes.
America’s goal endures –attract immigrants who can contribute to the country in a significant way. Thus, any incumbent administration should focus on addressing the discretionary determinations concerning its most desirable EB-1A immigrants. #
This column serves primarily as a guide. It aims to provide general information on immigration law. The information provided is for general guidance and reference purposes only and it is not intended to serve as, nor can it be relied upon, as legal advice to address any specific situation. Those with specific questions are strongly encouraged to contact an immigration attorney.)
*About the author
Born in Manila, Licelle Cobrador has over 10 years of experience in immigration and nationality law. Prior to establishing her own firm, Cobrador & Associates, PLLC, Licelle was an associate at a boutique immigration firm in Manhattan and a leading firm in Manila.
Licelle received her B.A. from the University of the Philippines, Manila (Cum Laude, Top 20 out of 267). After earning her J.D. from Ateneo de Manila University, she was admitted to practice law in the Philippines. She completed her LL.M at Benjamin N. Cardozo School of Law on a Dean’s Merit Scholarship and was admitted to practice in New York.
Licelle currently serves as Vice President and Executive Director of the Filipino American Legal Defense and Education Fund/ FALDEF and as Volunteer Attorney at the Migrant Center of New York. She is a past co-chair of the Cardozo Law Masters Alumni Community. She is also a member of the Filipino American Lawyers Association of New York/ FALA New York and the National Filipino American Lawyers Association/ NFALA.
Licelle has been selected as TimeIsNow’s Global Filipino Trailblazer. She is recognized as one of Women Today’s Women on the Front Rank, Cardozo Life Magazine’s Movers & Shakers and Cardozo Law’s Outstanding Alumni and has been published in Delaware Law. Licelle is a frequent national and international speaker on U.S. Immigration Law. #