USCIS utilizes a two-part approach in evaluating petitions for EB-1A or an alien of extraordinary ability.

First, USCIS looks at the documentary evidence, to determine whether it meets the “regulatory criteria”. The regulatory criteria can be met in two ways. Regardless of whether it is called a "phd EB1", an "entrepreneur EB1",  a petitioner must establish that either:

a) he or she is a recipient of a major, internationally recognized award, or 

b) he/she meets at least three of the criteria as enumerated in the relevant regulations.

Generally, in the EB 1a category, a major, internationally recognized award will include a one-time achievement, such as winning a Nobel Prize (for a scientist), winning an Olympic gold medal (for an athlete), or winning the Oscar (for a cinema artist). 

If the alien is not a recipient of a one-time achievement that is a major, internationally recognized award, (Category a Above), he or she can meet the regulatory criteria by providing evidence of meeting at least any 3 of the following EB-1 criteria:

• 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

Once the USCIS adjudicating officer has determined that the alien has met the regulatory criteria by either of the above-referenced methods, the adjudicator then evaluates the evidence submitted by the alien in its entirety to make a “merits determination”. 

During this merits determination the adjudicating officer determines whether the alien has a “sustained national or international acclaim” and whether the alien’s achievements “have been recognized in the field of his/her expertise”, indicating whether the alien “is one of that small percentage who has risen to the very top of the field of endeavor”.

It is noteworthy that USCIS uses a “preponderance of the evidence” standard in evaluating the evidence submitted by an alien. This means the CIS officer looks at the documents submitted to determine whether the assertions and claims made by the alien are “more likely than not” or “probably true”. In other words, whether there is a greater than 50% chance of an occurrence taking place.

It is important to note, that “how to get eb1 green card” is not a simple issue of filing documents under each category because what each category means or requires is not clear itself and has been litigated on many occasions in the past. It is extremely important to figure out which of our documents applied to which EB-1 Criteria. As an obvious example, the eb1 PhD requirements are quite different than those of an athlete’s. However, there are many other instances where things are not so clear. For example, what about two EB-1 candidates, who both have PhDs? Here that adjudicating officer may look at an application by a PhD., who has written several papers and brush aside this authorship because having authored papers is what PhDs do and this by itself does not any scientist unique or place them at the very top of their endeavor. Requirements of EB-1 are complex, the right attorney should be able to argue that although writing papers is something almost all PhDs do, this candidate has had his papers published or discussed by the most prestigious organizations in the field, thus making him or her unique. This also holds true for eb 1 petitions for those with minimum citations, or low citations. “Can I eb1 with low citations”, or “can I get an NIW with low citations” does not elicit a simple yes or now answer. Low citations can be overcome with several other strategies by the best eb1 attorneys in the eb1 green card application cover letter and how the case is presented. 

This area of immigration law is extremely complex and is meant to apply to a small group of people who have reached the very top of their field. “Who is eligible for an EB-1” is not so much a matter of having the right credentials, but relates more to how your credentials are presented, and arguments made. 

With premium processing, USCIS is required to adjudicate a case within 15 days of receiving the petition. One of three things will happen. USCIS may approve the case as it is, issue a Request for Evidence, otherwise known as RFE, or deny the case altogether (although denying a case at this stage is extremely rare). As an immigration law firms specializing in EB1 visas, we have had many instances where we received an approval within the 15-day period, but we have also received RFE or request for evidence notices that we have responded to. Receiving an RFE does not necessary mean the case is slated for a denial, and often an appropriate response by an expert EB 1 attorney will result in an approval of the case. 

What to do if your EB 1 is denied?

If your EB 1 case is denied, there are several things that can be done which are as follows:

You can re-file your eb-1 application after you have added the necessary documentation. The previous RFE and Denial letter can actually be used as a road map for what was missing in your initial petition to supplement the file and then re-file it. We have seen and know of many cases where the file was refiled including the new documentation and approved.

If you believe USCIS has made a mistake or have new documents that were not available to you when you initially filed the case, you can file an appropriate motion with the Service to re-open your case (when new previously unavailable evidence can be presented) or a motion to reconsider (when you believe USCIA has made a legal or factual mistake). 

You can ask USCIS to treat your motion to reopen / reconsider as an appeal should they disagree with your request and forward the case to the Administrative Appeal Office as an appeal. AAO statistics show that most of the appeals will follow the decision of the service, and, they take a long time to make their decision, but it may be a good idea to file an appeal depending on the details of your case. 

Initial filing stage

1. Unlimited email contacts related to your EB-1 case

2. Assistance in Preparation of sample letters of reference

3. Preparation of a comprehensive letter in support of your petition in which each one of the offered documents is explained and attributed to the appropriate category.

4. Preparing the USCIS petition and cover letter

Our Guarantee of We Will Win It or You Don’t Pay It® applies to most, but not all, cases. In situations were we feel the credentials are not of the quality that we can offer a 100% guarantee, we may offer a partial refund or a regular processing.