The Extraordinary Ability (EB1) immigrant visa category, as the name suggests, is set aside for immigrants who possess extraordinary ability in their fields. Unlike the case of other visa categories, individuals in this category may submit petitions for themselves. It also avoids the backlogs in other visa categories and is commonly used by artists, entertainers and researchers.
To qualify, an individual must provide evidence of (1) a one-time achievement that is of a major, international significance (the Nobel Prize is the standard example), or (2) at least three out of ten lesser types of accomplishments, as defined by regulations.
Although the regulatory framework has remained unchanged for years, USCIS has varied its interpretation of “extraordinary.” Recently, it has sought to impose requirements beyond those included in the regulations. Rather than accept evidence of three lesser accomplishments to show extraordinary ability, USCIS routinely has required applicants to prove how each accomplishment shows that they are extraordinary.
For example, the agency required a researcher to show how his publications have changed the way researchers viewed the area of science, even though the regulations only require the applicant to have authored publications. In another instance, the applicant was expected to show that he was selected to conduct peer review because of his extraordinary ability despite the fact the regulations require only that the individual has done peer review.
Kazarian v. USCIS may help check the USCIS’s excesses, at least in the Ninth Circuit. On March 4, 2010, the Court found "neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations]." Specifically, the Court found improper the agency’s denial of a visa to Poghos Kazarian because of his failure to demonstrate the “research community’s reactions to his publications." Ultimately, Kazarian did not qualify for the visa, but the Ninth Circuit’s affirmation that USCIS cannot impose new requirements on applicants arbitrarily is a major win for Extraordinary Ability applicants. (The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.)