Extraordinary ability is a level of expertise that places the applicant among “the small percentage of individuals who have risen to the very top of their field of endeavor”. Generally, this means that the applicant must demonstrate that he/she is among the top 5% of experts within their field. This immigrant category is not subject to a labor certification requirement prior to filing for the adjustment of status. According to the Immigration and Nationality Act (“INA”) §203(b)(1)(A) a person with extraordinary ability is someone who:
- has extraordinary ability in sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation; and,
- seeks entry to continue work in the area of extraordinary ability; and
- whose entry will substantially prospectively benefit the U.S.
To be qualified, the foreign national is not required to have an offer of employment. But the applicant does need proof that he intends to pursue work in the area of expertise in the U.S.
Initial Evidence [8 C.F.R. §204.5(h)(3)]: The applicant must demonstrate “sustained or international acclaim” and that his achievements have been recognized in his field of expertise. Evidence shall include evidence of a one-time achievement, such as an major internationally recognized award (e.g., Nobel Prize). If the applicant is not the recipient of such an award, then documentation of at least three of the following is required:
- Receipt of lesser nationally or internationally recognized prizes or awards.
- Membership in association in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts.
- Published material about the person in professional or major trade publications or other major media.
- Participation as a judge of the work of others.
- Evidence of original scientific, scholastic, artistic, athletic or business- related contributions of major significance.
- Authorship of scholarly articles in the field.
- Artistic exhibitions or showcases.
- Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
- High salary or remuneration in relation to others in the field.
- Commercial success in the performing arts.
However, note that the submission of evidence in three of the ten categories may not be sufficient; USCIS may require additional evidence.
An applicant is permitted to submit “comparable evidence”, including expert opinion letters attesting to the applicant’s abilities, if the above standards do not readily apply. Ask your immigration attorney for assistance with drafting expert opinion letters.
