Please note: This article was written in 2005 and is no longer being updated.1 However, it still serves as an accurate overview and introduction to the use of the ‘alien of extraordinary ability’ green card for business people.
Albert Einstein would have
been eligible. So would Enrico Fermi and Victor Hess. They
all would have been eligible for permanent resident status
as aliens of extraordinary ability, based upon their receipt
of “a major, international recognized award”—in
their cases, the Nobel Prize in Physics.2
Aliens of extraordinary ability
in the sciences, arts, education, business or athletics can
qualify for lawful permanent residence in the first employment-based
immigrant preference category.3 The extraordinary
ability preference offers many advantages to the qualified
applicant, among them the valuable option to self-petition,
thereby dispensing with the need to obtain a sponsor.
Although potentially very
useful to the world’s best and brightest, the preference
category for aliens of extraordinary ability is very little
used; in Fiscal Year 2003 only 1224 principal applicants obtained
lawful permanent residence on this basis.4 It is
our belief that qualified applicants have been discouraged
from using the EB-1-1 category due to a mistaken impression
that it is available only to the winners of major awards such
as the Nobel, or to those persons outstanding in the arts
is specifically listed as one of the fields of endeavor as
to which the EB-1-1 is available, and in fact many of the
criteria used to prove extraordinary ability in the more familiar
contexts of the arts and sciences can easily be adapted to
benefit aliens who seek permanent residence in the United
States based upon their success in business.
This article is designed to encourage aspiring permanent residents
and their attorneys to consider immigrant petitions based
upon extraordinary ability in business.
Legislative and Regulatory
The EB-1 immigrant visa for
aliens of extraordinary ability (hereinafter “EB-1-1”)
was created by the Immigration Act of 1990.5 That
Act added a new subsection to the Immigration and Nationality
Act6 and created five immigrant visa preference
categories, including employment-based, special immigrants,
and employment creation.
The first preference, for
priority workers, includes aliens of extraordinary ability,
and originally 40,000 visas were set aside for it. That allocation
was changed in 1991 to its current level of 28.6% of the worldwide
Eligible for treatment as
aliens of extraordinary ability8 are those persons
Extraordinary ability in
the 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.9
In addition, the alien must
demonstrate that (1) he seeks to enter the United States to
continue work in the area of extraordinary ability, and (2)
his entry will “substantially benefit prospectively
the United States.”10
The legacy Immigration and
Naturalization Service regulations on the subject define “extraordinary
ability” as “a level of expertise indicating that
the individual is one of that small percentage who have risen
to the very top of the field of endeavor.”11
The first step is to define the relevant field of endeavor.
Your client may not be at the very top of all businesspeople
world-wide, but could be at the top of all those involved
in commercial passenger aviation, or financial journalism,
or automobile manufacture. Define the field as narrowly as
If the alien does not have
a Nobel or other “major, international recognized award,”
then one needs to produce evidence of at least three types
from the list of 10 in 8 C.F.R. § 204.5(h)(3).12
Let us review those criteria with particular attention to
the types of documentation that might be available to businessmen
and -women. Our experience and the examples we give are largely
from the United Kingdom, but your client’s home country
may well have equivalent resources that you can mine for material.
prizes or awards for excellence in the field of endeavor.
Prizes may not be as typical for businesspeople as they
are for athletes or artists, who routinely take part in
competitions, but do not overlook this criterion. Groups
such as trade associations and professional organizations
often confer awards for excellence. Has the client been
named “Man of the Year” by a chamber of commerce?
Perhaps a manufacturers’ association has distinguished
your client for her innovation in its field? Here in the
UK the Confederation of British Industry bestows annual
“Growing Business Awards,” which the Chancellor
Gordon Brown has called “the business equivalent
of the Oscars.”13
in associations in the field, which associations require
outstanding achievements, as judged by recognized experts
in the field.
Some business organizations may accept as members anyone
with an interest and a check for the membership fee. Membership
in such an organization is of no assistance in an EB-1-1
application. However, your client’s participation
in a roundtable of well-regarded businesspeople is worth
documenting. A British example: The business organization
“Institute of Directors” offers several levels
of membership, depending on the applicant’s qualifications
and experience, and includes the level of “Fellow,”
which is available only upon invitation of the Institute’s
Board.14 Qualify the Board members as “experts
in the field,” and selection of a client as a “Fellow”
could fit this rubric.
material about the alien in professional or major trade
publications or other major media, relating to the alien’s
work in the field.
Our experience shows that many businesspeople maintain
scrapbooks of articles (at least the favorable ones) that
mention their activities and achievements. Those scrapbooks
can be replaced, or supplemented, by your own Internet
research and by clipping services that can retrieve materials
not available on the Internet. Entries from Who’s
Who and other biographical dictionaries should be included.
Do not overlook smaller, national biographical sources
as well. One published in Great Britain has the helpful
following criteria for inclusion: The subjects must be
either British citizens, or foreign nationals working
in Britain, “whose achievements have raised them
to renown as leaders in their fields.”
of the alien’s original business-related contributions
of major significance in the field
Was your client the first to offer pay-as-you-go wireless
telephone service in his country? Perhaps he created the
first company in his area to offer data processing to
US companies seeking to outsource that work? Such pioneering
endeavors can often be proved through articles in the
press. In addition to trade publications do not overlook
“home town” or weekly newspapers which are
often particularly interested in trumpeting a new product
or service made available by a local resident. Letters
from colleagues or other persons knowledgeable in the
field can be of assistance here in explaining the significance
of the contribution.
in a leading or critical role for organizations or establishments
that have a distinguished reputation.
This is a natural choice for anyone who has held an important
position at a successful company. Establish the company’s
“distinguished reputation” and then show how
important your client was to the company. For journalists,
circulation figures for their periodicals should be obtained,
and any distinguished history or reputation of the publication
should be emphasized.
that the alien has commanded a high salary or other significantly
high remuneration for services, in relation to others
in the field.
Many professional and trade organizations perform periodic
salary surveys that can be used as comparison for your
client, particularly if the survey is accompanied by an
explanation of the statistical fine-points of the methodology.
Although O*NET and other easily-available surveys can
be convenient starting points their lack of detail (no
breakdown into percentiles, for example) mean they will
be of little help in showing that your client is at the
very top of the salary scheme.
Do not overlook the regulations’ invitation to “submit
comparable evidence” if the regulations listed “do
not readily apply to the beneficiary’s occupation.”15
This can be one of the most fruitful areas for a lawyer
with some creativity, for a prospective EB-1-1 in business
will not have “evidence of commercial successes
in the performing arts”16 but may be
able to show great commercial success for the business
or portion of a business he led. His work will not have
been displayed “at artistic exhibitions or showcases,”
but perhaps his business was used as a (favorable!) case
study by a local business school. Ask your client such
questions as: Was his company invited to take part in
a display of the country’s businesses organized
by the trade authorities?
Although the United
Nations has proclaimed 2005 to be “International Year
of Physics”17 , we practitioners of US immigration
law should make it the year we prove to ourselves and our
clients that it is not just rocket scientists, or Nobel Prize
winners, who can qualify for the EB-1-1 and thereby obtain
permanent residence in the United States.
1 An earlier
version of this article first appeared in the April 12, 2005
issue of Immigration
Daily at http://www.ilw.com/lawyers/articles/2005,0412-mcfadden.shtm.
2 The three won their Nobels for the years 1921
(Einstein), 1938 (Fermi) and 1936 (Hess). All three were naturalized
as US citizens after their receipt of the Nobel—the
German-born Einstein in 1940, Italian native Fermi and Austrian
Hess in 1944. http://nobelprize.org/physics/laureates/index.html
3 The first preference also includes outstanding
professors or researchers, and multinational executives or
4 US Citizenship and Immigration Services, 2003
Yearbook of Immigration Statistics, Table 5. Available at
5 Immigration Act of 1990, Pub. L. No. 101-649,
§121. It was effective October 1, 1991 (§161), far
too late for Einstein, Fermi and Hess.
6 INA § 203(b), 8 U.S.C. § 1153(b).
7 Section 302(b)(2) of the Miscellaneous and Technical
Immigration and Naturalization Amendments of 1991, Pub. L.
8 The statute refers to aliens ‘with’
extraordinary ability, but the language of the body of the
regulations (as opposed to the headings of same) speak of
aliens ‘of’ extraordinary ability.
9 INA § 203(b)(1)(A)(i), 8 U.S.C. § 1153(b)(1)(A)(i).
10 INA § 203(b)(1)(A)(ii) and (iii), 8 U.S.C.
§ 1153(b)(1)(A)(ii) and (iii).
11 8 C.F.R. § 204.5(h)(2).
12 Production of evidence of three of the 10 types
however does not guarantee that the alien will be found eligible
for the EB-1-1. See Notes of California Service Center/American
Immigration Lawyers Association Liaison Meeting, May 2001,
available on AILA InfoNet Doc. No. 01052403. Cf. Letter from
Edward H. Skerrett to Nathan A. Waxman, June 15, 1995, posted
on AILA InfoNet June 29, 1995 (EB-2 outstanding professor
or researcher classification).
14 See www.iod.com
15 8 C.F.R. § 204.5(h)(4).
16 8 C.F.R. § 204.5(h)(3)(x).
17 Proclaimed by the United Nations on June 10,
2004, commemorating the centenary of Albert Einstein’s
annus mirabilis in which he published landmark papers on special
relativity, Brownian motion, and the photoelectric effect.