Outstanding Researchers and Aliens with Extraordinary Ability

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Extraordinary ability and outstanding researcher petitions for permanent residence are more difficult to win than their temporary O-1 cousin.
 

Extraordinary Ability and outstanding researcher categories are different.  Extraordinary ability petitioners may self-petition and outstanding researchers may not.  Outstanding researcher petitions require the petitioning employer to show that it operates a permanent full time research department and extraordinary ability petitions do not.  But the extraordinary ability category carries a high burden of proof making it among the most difficult of petitions to get approved.

Extraordinary ability cases have faced difficult hurdles for decades.  The most common problem is USCIS introducing novel legal requirements into almost every case.  For example, USCIS adjudicators often find that the petitioner's publication of articles in scholarly journals do not meet the published articles requirement unless petitioner proves that the articles were met with sustained national or international acclaim and require that others have cited to the articles.  This is clearly not the rule and creates an awkward circular reasoning problem: the statute directs the petitioner to satisfy at least three listed categories to prove he has achieved sustained national or international acclaim and has risen to the top of his field.  It is improper to require that each category of evidence itself achieves "acclaim" and "top of the field" status because USCIS defines meeting three of the categories as achieving sustained acclaim and top of the field status.

USCIS released statistics in February 2011 for I-140 outstanding researcher and extraordinary ability petition total filings and approval rates.  The numbers are illuminating.  From 2005 to 2010 extraordinary ability petition approvals hovered in the range of 47% to 62%, while outstanding researcher petitions ranged from 90% to 95% over the same period.

A petitioner for EB-1(a) extraordinary ability must demonstrate sustained national or international acclaim, that he has risen to the top of his field, and that for at least three of the following ten categories using persuasive evidence the petitioner:

  1. Received any lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  2. Is member of one or more associations that require outstanding achievements of their members as judged by recognized national or international experts
  3. Published material in professional or major trade publications or major media about you which relates to your work in the field
  4. Participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization
  5. Made original scientific, scholarly or business contributions that are of major significance
  6. Authored scholarly articles in professional journals or other major media
  7. Had work displayed at artistic exhibitions or showcases
  8. Played a leading or critical role for an organization with a distinguished reputation
  9. Has or will you command a high salary or other remuneration for services compared to others in the field
  10. Enjoyed commercial successes in the performing arts

 

Extraordinary Ability I-140 Statistics 2005 to 2010

Fiscal Year

Approvals

Denials

Approval Rate

Denial Rate

2005 791 647 55% 45%
2006 1,646 1,032 61% 39%
2007 2,236 2,313 49% 51%
2008 2,329 2,667 47% 53%
2009 4,337 3,053 59% 41%
2010 3,200 1,998 62% 38%

 

Outstanding Researcher I-140 Statistics 2005 to 2010

Fiscal Year

Approvals

Denials

Approval Rate

Denial Rate

2005 5,042 340 94% 6%
2006 2,991 146 95% 5%
2007 2,459 283 90% 10%
2008 2,148 172 93% 7%
2009 3,893 300 93% 7%
2010 3,140 306 91% 9%

USCIS also sometimes finds that petitioners' evidence showing participation as a judge of the work of others fails becauase reviewing the work of others at a single university fails to show acclaim beyond that university.

Bernard Wolfsdorf's work in appealing Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. March 4, 2010) case went a long way toward opening the extraordinary ability category from USCIS' difficult and opaque standards.  But it remains to be seen whether USCIS will adopt Kazarian's rules without further litigation.

In May 2010, the American Immigration Lawyers Association asked USCIS Nebraska at a liaison meeting what it would do to implement procedural changes to comply with Kazarian.  USCIS responded that it had not modified adjudications standards as of that time, but was working on a new type of Request for Evidence that would address similar problems.  But USCIS did not clarify if the problems addressed include specifically the Kazarian one.

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