5 Things You Can Do To Improve Your EB-1 Chances

Law Offices of Jonathan Liang
9300 Flair Dr., Suite 105, El Monte, CA 91731
Toll Free: 1-866-661-7705
Tel: (626)288-7900,       Fax: (626)288-7902,
http://www.lianglaw.com                 email: counsel@lianglaw.com

By: Jonathan Liang, Attorney at Law

The USCIS started implementing a more restrictive policy on EB-1A and EB-1B cases that first appeared in memo form in August of last year. In our office we refer to the memo as the “Kazarian Memo”, as it is based on the decision of the US 9th Circuit Court of Appeals in Kazarian vs. USCIS. My discussion will not be on the legality of the policy espoused in the memo, though I do believe its legality is suspect. The practical approach in preparing a potential EB-1a and EB-b case is to understand the underpinnings of the new policy and to overcome these additional hurdles with substantive evidence and cogent analysis.

Briefly, the new USCIS policy on EB-1a and EB-1b cases imposed on the EB-1 applicants the added burden of demonstrating “sustained national or international acclaim” and “achievements that have been recognized in the field of expertise.”  This is in addition to demonstrating the applicant has met 3 of the criteria enumerated in the code of federal regulations.

Notwithstanding the fact that the US federal courts, and the USCIS own legacy memo all have endorsed the more reasonable view that satisfaction of 3 items in the regulations is itself a demonstration of the petitioner’s international and national acclaim, potential petitioner now has the added task of responding to more onerous requests based on this new policy.

To more effectively deal with this added requirement, the potential petitioner can, in our view, enhance his or her EB-1 case by consider the following:

1.       Find Allies - Increase the Proportion of none US references. We tell our clients, in the EB-1 context, to have a proper proportion of supporting reference letters from sources other than the United States. We counsel our clients to have an ideal balance of reference letters from the US and overseas. Of course, the proper balance varies due to differing fields of research or area of extraordinary ability. The key is to demonstrate sufficient “international or national acclaim.”

2.       Pick Your Fight - Accentuate Particular Items that reflect International Acclaim. In the new EB-1 environment, evidence or information that accentuate the notion of international or national acclaim need to be emphasized. This turns on both the drafting of the petition letter, which is the single most important document in the petition, and the presentation of various other evidences that directly or circumstantially point to the petitioner’s acclaim. How the evidence is presented, more importantly, whether critical, highly relevant information is presented in a manner that is understandable, and accessible, by the USCIS examiner, can be a factor in the case outcome.

3.       Know the Law – Familiarize yourself with the “Trinity”. The EB-1 category, like other areas of immigration practice, is constantly in flux. For the petitioner who files the case without professional help, it is important to have a familiarity with the EB-1 operational framework. This include a familiarity with the trinity of EB-1 practice, they are the legal statutes, the USCIS policy memos and the US Court decisions governing the EB-1 area. The law consists of the Immigration and Nationality Act (INA) and the Code of Federal Regulations (CFR). The USCIS policy memos are particularly important because the changes in USCIS policy and standards on EB-1 cases have been promulgated mostly through USCIS agency memos. The transition from the more liberal interpretation of the INA by the legacy INS and later in 2010 by the USCIS to a more stringent standard, can be clearly delineated from INS and USCIS memos through the years. As for federal court decisions, interested petitioners can get an introductory education by a reading of the Buletini vs. US, and the Kazarian vs. US cases. 

4.      Going All In - Present “Totality of the Evidence”.  In some cases, there are no single evidence that will directly satisfy the second prong of the EB-1 requirement. Adding all the evidence together, however, can sometimes persuade the USCIS officer that the petitioner’s level of acclaim has crossed the imaginary threshold needed for approval. In a sense, the whole exercise of deciding whether someone is “internationally or nationally acclaimed” is subjective. Being a subjective exercise, it is useful to use the full force of the entire evidence to demonstrate that the subjective “international or national acclaim” was established. This requires the use of considerable rhetorical and persuasive skills of the preparer.

5.       Know Your Audience. I have written many times in my previous posts on the Eb-1 topic, that the person examining your case is not well versed in the field of your extraordinary ability. You are presenting the evidence to a government bureaucrat, with no other broad interests outside what he or she is ordered to perform on the job. Your job is to make your case compelling enough so that this functional bureaucrat will not have a negative impression in the first 10 seconds. This requires a humanistic element. This is similar to you getting a job interview, not only do you have to prepare the interviewer’s possible technical questions, but more importantly, to present yourself in a likeable fashion so that you can connect with the interviewer on a personal level. This consideration is inherently nebulous, but preparing your case with an arsenal of both professionally meritorious evidence and an understanding of human nature may go a long way in propelling your case to the approved pile.

We have practiced in the EB-1 area for over 15 years. The above are by no means inclusive of all issues and considerations required in an EB-1 case. However, they are some of the more important distillates from our decade and half experience in this area. Even with the increased scrutiny in EB-1 cases, we still believe the EB-1 category represents one of the most direct, immediate, and cost effective ways of legally immigrating to the US. If you are considering an application in this category, you are welcome to contact our office for a one on one consultation with me. We also provide free evaluations via email. You can email your cv to: counsel@Lianglaw.com for a free EB-1 evaluation.

Law Offices of Jonathan Liang
9300 Flair Dr., Suite 105, El Monte, CA 91731
Toll Free: 1-866-661-7705
Tel: (626)288-7900,
Fax: (626)288-7902,
email: counsel@lianglaw.com

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