Adjudication Trends in EB-1a and EB-1b Science Cases: Meeting the Statutory Standard
The routes to permanent residence for science researchers include the Eb-1a “Extraordinary Ability” petition and the Eb-1b “Outstanding professor or researcher” petition. Neither of these categories requires labor certification. However, only the first allows self-sponsorship; Eb-1b requires a qualifying offer of employment.
Beneficiaries in the two Eb-1 categories must meet a prescribed number of statutory criteria. While the language of the criteria remains stable over time, the way it is interpreted by USCIS adjudicators can change. These shifts can have a significant effect on what evidence is required to support the case.
Eb-1a petitioners have a statutory standard as well as criteria to meet: they must be able to support the claim that they are among the few who have risen to the very top of the field of endeavor by showing sustained national or international acclaim. This language is separate from the particular criteria defined for the category, and pushes up the bar. In other words, it is not enough to show the beneficiary’s “authorship of scholarly articles in the field, in professional or major trade publications or other major media,” which is the language of the criterion alone. When one takes into account “top of the field” and “sustained national or international acclaim,” it becomes quite important to, for example, highlight the beneficiary’s first-authored publications and submit the impact factor of the publishing journals. Further, one must also include evidence that shows some impact of the research, for example strong citation statistics and the background information to show the adjudicator their strength. This has been a growing trend over time, so that now simply submitting a list of the beneficiary’s articles in science journals with international circulation is not likely to satisfy the criterion.
Analogously, one must also take care with all published material “about” the beneficiary submitted in support of an n EB-1a case. It must have appeared in journals, technical magazines, or electronic publications with demonstrable national or international readership. Further, the beneficiary (or his or her work) must be featured.
In Eb-1b, the statutory standard is international recognition in a specific academic area, where academic area is “a body of specialized knowledge offered for study at an accredited United States University or institution of higher education.” Selecting the academic area can be a strategic decision, as it can be easier to show “international recognition” in a more narrowly defined field. As with the EB-1a category, however, the international standard has had a growing impact on the interpretation of the criteria. One would be best advised to show that published research has set the beneficiary apart from others in the field, not simply that he or she has published articles in international journals. Indeed, although publications appearing in national or international journals technically qualify, most national journals will not reach the normal adjudications standard.
Also in keeping with the notion of “international recognition,” activity as a peer reviewer is not qualifying evidence under the criterion that the alien be a “judge of the work of others.” It certainly does not qualify if a supervisor simply passed on the request to the beneficiary, and it does not carry much more weight even if the foreign national is a regular reviewer for a publication (unless that publication is Nature or the like.) Grant reviewing does qualify, although one must bear in mind that only grants national in scope (available to researchers nation wide) satisfy the criterion. However, the nation need not be the U.S.; a grant reviewer for a foreign government’s national grant program could use this evidence.
In sum, the adjudications policy for Eb-1a and Eb-1b is becoming more and more restrictive. Foreign scientists and their employers should be prepared to demonstrate not only that the beneficiary meets criteria for the category, but also how he or she is distinguished from most others meeting those criteria.