EB-1 Spotlight: Challenging The Status Quo

• Published date: 14 June 2023
• Subject Matter: Immigration, General Immigration
• Law Firm: Klasko
• Author: Ms Allie K. Dempsey

As layoffs continue throughout the tech industry and other parts of the U.S. economy, many foreign workers who have lost their employment have also been faced with significant immigration issues. The immediate issue for many such workers is the potential loss of underlying or temporary status. For example, a laid-off worker in H-1B status only gets a limited 60-day grace period during which a terminated employee can remain in the U.S. and try to find a new employer sponsor. However, another pressing issue for many foreign workers is sponsorship for U.S. permanent residency, or a green card, which is often also tied to an employer sponsor.

The Immigration and Nationality Act (INA), however, provides two paths to a green card that can be pursued independently of employer sponsorship, specifically EB-1A extraordinary ability classification (INA ' 203(b)(1)(A)) and the EB-2 national interest waiver (INA ' 203(b)(2)(B)). Although the legal standards for these classifications are different, both allow a foreign worker the flexibility to self-sponsor for permanent status if they can meet the high evidentiary standards for these categories via extensive documentation. This can provide a greater sense of security in an unstable market, as well as more freedom to voluntarily change employment. The EB-1A category also offers the added benefit of a drastically shorter wait time for a green card for individuals emigrating from severely backlogged countries (i.e., India and China).

Considering these benefits, there has been an increasing level of interest in the EB-1A extraordinary ability classification in particular. However, practitioners and potential applicants should be mindful of several challenges that can arise when seeking permanent residence on the basis of extraordinary ability.

One issue is the incredibly high standard for the EB-1A, which is reserved for individuals who can establish that their achievements in their chosen field have generated sustained national or international acclaim and demonstrate that their achievements have been recognized in the field. The evidence must also establish that the individual is "one of that small percentage who have risen to the top of the field of endeavor." The governing regulations provide that extraordinary ability can be demonstrated by presenting evidence of a major, one-time achievement (i.e., a Nobel prize or Turing award) or through documentation that meets at least three of ten enumerated criteria, such as a...