The EB-1 is a preference category for United States employment-based permanent residency. Within the category, the EB-1A is a sub-category specifically designated for “aliens of extraordinary ability” and is an achievement-based opportunity for a green card available for those who are deemed to have risen to the small percentage at the very top of his or her field.
As an immigrant visa classification, it is intended for people who have extraordinary ability in one of several fields, namely, the arts, sciences, business, education, or athletics. The EB-1A visa is comparable to the O-1 visa classification in terms of applying an “extraordinary ability” definitional standard, and is a common route taken to convert from O-1 visa status to a green card.
To qualify for an EB-1A visa, several requirements must be met. You must:
(a) have an “extraordinary ability”;
(b) be coming to the US to work in your field of extraordinary ability; and
(c) show that you will provide a substantial benefit to the United States.
So what are the differences between the O-1 and EB-1A?
Firstly, the O-1 is a nonimmigrant visa classification which allows you to temporarily work in the United States, with an unlimited number of renewal applications possible to extend your temporary stay. The EB-1 is an immigrant visa classification, which means that you can live and work in the United States permanently.
Also, the EB-1A visa allows you to self-petition. This means that you are not required to find an employer to file your immigrant petition on your behalf. Rather, you can self-petition by yourself without a job offer. The O-1 requires that a petitioner file on your behalf and requires a job or multiple job offers, depending on whether a single employer or an agent files on your behalf.
As to the regulatory criteria, the requirements for the EB-1A visa are similar to the requirements for the O-1 visa. This may lead many people to assume that because they have received an O-1 visa, they can automatically qualify for an EB-1A visa. However, this is not necessarily the case. Although the requirements appear to be similar at a first glance, USCIS has a more exacting standard for EB-1A petitions than for O-1 petitions. This means that even if someone is approved for an O-1 visa, they still may be denied for an EB-1A visa. Also, the EB-1A visa requires you to show that you will provide a substantial benefit to the United States, whereas the O-1 visa does not have this requirement.
Another difference between the O-1 visa and the EB-1A visa concerns regulatory definitional standard of “extraordinary ability.” Both categories requires that the beneficiary demonstrate extraordinary ability by sustained national or international acclaim. However, the standard for what qualifies as an “extraordinary ability” is markedly lower for the O-1B than it is for EB-1A. To qualify as an extraordinary ability under EB-1A, you must show that you have a level of expertise placing you among the small percentage of people who have risen to the very top of your field. Roughly speaking, this is the same standard used for the O-1A (sciences, athletics, education, business). However, under the O-1B category (arts) the standard for what qualifies as extraordinary ability is “distinction.” Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts. Comparatively, the O-1B standard is lower than what is required for the EB-1A.
Evidentiary Criteria for EB1A Visa
You must meet 3 of 10 criteria below, or provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal)
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
- Evidence of your membership in associations in the field which demand outstanding achievement of their members
- Evidence of published material about you in professional or major trade publications or other major media
- Evidence that you have been asked to judge the work of others, either individually or on a panel
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
- Evidence that your work has been displayed at artistic exhibitions or showcases
- Evidence of your performance of a leading or critical role in distinguished organizations
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
- Evidence of your commercial successes in the performing arts
How Does USCIS Decide Whether to Approve or Deny an EB-1A Visa Petition?
USCIS utilizes a 2-step process when determining whether to approve or deny an EB-1A petition, which at least on the record, differs from the O-1 adjudicatory process.
Step 1: Evidentiary Threshold
- At this stage, USCIS checks to make sure that you have submitted evidence to satisfy at least 3 of the 10 categories listed above.
- The quality and the caliber of the evidence you submit is measured during this stage.
- If you do not meet at least 3 of the 10 criteria, then you application is denied at this stage.
- At this stage, USCIS is not determining whether you are one of the select few that have risen to the top of your field.
Step 2: Final Merits Determination
- At this stage, USCIS evaluates the totality of the evidence you have submitted to determine if you are individual of extraordinary ability.
- It is at this stage where USCIS determines whether you are one of the select few who has risen to the top of your field.
- Here, USCIS is also evaluating whether you have “sustained national or international acclaim” and whether your achievements have been recognized in your field of expertise.
Among the various options available to apply for a green card, the O-1 to EB-1A avenue is a common path taken by those wishing to transition from an O-1 visa to a green card. The process of going from O-1 to EB-1A requires filing a Form I-140 with USCIS, after which Form I-485 is filed once the I-140 is approved. These steps can also be combined so that both forms are filed simultaneously. The EB-1 sets a very high standard to meet, but it is attainable for the right candidate.
To find out more about the EB-1, contact our Immigration Practice Group at 718-539-1100 or firstname.lastname@example.org.