New USCIS Guidance for Evaluating Extraordinary Ability, Outstanding Professor, Researcher Visa Classifications

U.S. Citizenship and Immigration Services (USCIS) has updated its Policy Manual (PM) to provide guidance to USCIS officers on evaluating eligibility criteria for the EB-1A (extraordinary ability) and EB-1B (outstanding professor or researcher) employment-based immigrant visa classifications.

The EB-1 immigrant visa classifications are important methods for employers to sponsor outstanding talent in the United States and may even be a solution for certain individuals who did not “win” the H-1B lottery.

Although the legal requirements for EB-1 classification remain unchanged, the updated PM provides detailed guidelines to USCIS officers on best practices for interpreting existing law and regulations when adjudicating EB-1 petitions.

Following are highlights of the September 12, 2023, updates to the PM Volume 6, Part F, Chapters 2 and 3:

• Provide guidance and examples of evidence that may satisfy the relevant criteria or qualify as comparable evidence.
• Outline additional considerations for evaluating such evidence, with a focus on science, technology, engineering, or mathematics (STEM) fields.
• Provide examples of factors that weigh in favor of approval when USCIS officers perform the two-part “final merits” analysis under Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Kazarian requires USCIS to (1) determine whether the petitioner has submitted evidence that meets at least three of the factors for EB-1 classification and (2) examine the quality of the evidence to determine whether the evidence in its totality demonstrates the required level of expertise for the extraordinary ability preference category; in other words, whether the beneficiary is among the very small percentage of people in their field who has risen to the very top of their field.

For a detailed summary of key considerations in evaluating the viability of an EB-1 petition, and an overview of the Kazarian two-part analysis, please refer to our March 10, 2022, post, O-1 and EB-1 Visa Adjudication Following USCIS Change.

The updated USCIS Policy Manual provides needed clarity and transparency to applicants and practitioners in evaluating appropriate evidence to establish a beneficiary’s eligibility for EB-1 classification.

Jackson Lewis attorneys are available to assist in evaluating, preparing, and filing petitions for outstanding researchers and individuals with extraordinary ability.