Alien of extraordinary ability is an alien classification by United States Citizenship and Immigration Services. The United States may grant a priority visa to an alien who is able to demonstrate "extraordinary ability in the sciences, arts, education, business, or athletics" or through some other extraordinary career achievements.
The immigrant version of the classification (EB-1A), which grants permanent residency, additionally requires the alien to demonstrate "sustained national or international acclaim", "achievements recognized by others in the field of expertise", and "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". It has the important advantage that the petitioner can self sponsor rather than relying on an employer sponsor. Depending on country of origin, this category may also allow one to bypass waiting lists of many years.
It is known colloquially as a "genius visa" or "artists' visa" (many of the recipients are artists).
It can be granted on immigrant or non-immigrant basis. The immigrant version is known as EB-1A (officially, E11 or E16 classification[1]), and the non-immigrant version is known as O-1.
The immigrant version (EB-1A) is known to have a much more stringent standard than the non-immigrant version.[2] In some cases an EB-1A petition may be filed on behalf of an alien who was previously granted the O-1, alien of extraordinary ability non-immigrant classification. Though the prior approval of an O-1 petition on behalf of the alien may be a relevant consideration in adjudicating the EB-1A petition, the adjudicator is not bound by the fact that the alien was previously accorded the O-1 classification if the facts do not support approval of the EB-1A petition; eligibility as an O-1 nonimmigrant does not automatically establish eligibility under the EB-1A criteria for extraordinary ability. Each petition is separate and independent and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions. Moreover, the O-1 non-immigrant classification includes different standards and criteria for aliens in the arts, athletics, and the motion picture industry. In such cases, there would be nothing inconsistent about finding that an alien in the arts has “distinction” according to the non-immigrant criteria, but not “national or international acclaim” according to the immigrant criteria.[2]
See also: EB-1 visa.
An alien meeting the extraordinary ability criteria may be eligible for an employment-based, first-preference EB-1 immigrant visa. An alien must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Achievements must be recognized through extensive documentation. No offer of employment is required.[3]
An alien must provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal), or meet 3 of 10 criteria below and demonstrate that he or she has:
E11 classification and E16 classification are the same except E11 is issued for people currently living outside the United States, whereas E16 is issued to people who currently reside in the United States and would like to adjust their immigration status.[4]
The alien must prove eligibility by meeting the requirement in a two-step analysis, according to a standard adopted by USCIS since 2010 (see Kazarian v. USCIS).
In Part One, the alien must meet three out of the ten listed criteria below to prove extraordinary ability in the field:[2]
In addition to the above, the regulations add the following flexibility: "If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility."[5]
Meeting the minimum requirement of providing evidence relating to at least three criteria does not, in itself, establish that the alien in fact meets the requirements for classification as an alien of extraordinary ability under section 203(b)(1)(A) of the INA. In making this determination, the court in Kazarian v. USCIS recognized that the quality of the evidence, such as whether the judging responsibilities were internal and whether the scholarly articles (if pertinent to the occupation) are cited, is an appropriate consideration in the final merits determination. In addition, the alien's performance at the so-called major-league level does not automatically establish that he or she meets the extraordinary ability standards. See Matter of Price, 20 I&N, Dec. 3241 citing to 56 FR 60899 (Nov. 29, 1991). Finally, Congress intended that in the absence of a one-time achievement, an alien could qualify for the classification based on a "career of acclaimed work." H.R. Rep. No. 101-723, 59 (Sept. 19, 1990).
In Part Two of the analysis in each case, the adjudicator must consider all of the evidence to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has:
The EB-1A, unlike its non-immigrant counterpart, provides a pathway to citizenship. Unlike most employment based pathways to citizenship, if someone can qualify as an EB-1A alien of extraordinary ability, that person can self sponsor without the need for their employer to sponsor them. A green card can be granted on the basis of an EB-1A (but not an O-1) approval. Once the green card is granted, the standard waiting period of five years--which applies to immigrants in many categories--is generally required before applying for citizenship.
Although the EB-1A application is an administrative process, a denial can be appealed through the US federal court system. Another ice dancer, Christina Carreira, applied for EB-1A but was denied. She appealed that denial through the US federal court system. Carreira argued in the appeal that the criteria used in her case were unreasonable because they were so restrictive that, were they to be applied generally, they would allow no athletes at all to qualify as aliens of extraordinary ability. After winning her US green card, Carreira competed for the US and won a bronze medal at the 2022 Four Continents Figure Skating Championships.[6] [7] [8]
See also: O visa.
The O1 nonimmigrant visa is for an alien who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.[9]
Eligibility criteria for O-1A visa should include an evidence that the beneficiary has received a major award, such as a Nobel Prize, or evidence of at least three of the following: