Extraordinary ability aliens fall within the employment-based first preference. Pursuant to INA § 203(b)(1)(A), the requirements for first preference classification are as follows:
- the alien has 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;
- the alien seeks to enter the United States to continue work in the area of extraordinary ability; and
- the alien's entry into the United States will substantially benefit prospectively the United States.
Meaning of Extraordinary Ability
The list includes "sciences, arts, education, business, and athletics'' but not professionals. On the basis of this ommission, the INS takes the position that the practice of a profession is not one of the fields included within the extraordinary ability category. Therefore, an individual claiming to be an alien of extraordinary ability in one of the professions (such as law) will not be classified under the first employment-based preference.
The term "extraordinary ability'' is defined at 8 CFR §204.5(h)(2) 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''. 8 CFR §204.5(h)(3) specifies initial evidence which must be submitted to establish that the alien "has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." Such evidence must include evidence of a one-time achievement (i.e. a major internationally recognized award) or at least three of the following:
- documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
- documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
- published material about the alien in professional or other major trade publications or major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
- evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
- evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
- evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
- evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
- evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
- evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
- evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
8 CFR §204.5(h)(4) states that if the above do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility. Without evidence of such a one-time achievement or three criteria demonstrating sustained acclaim, the petition will likely fail. Also, technically meeting the initial evidence requirement does not guarantee that the alien will be found to be an alien of extraordinary ability.
Requirement of Intention to Continue Work in the Field
Aliens of extraordinary ability do not need an employer or other sponsor. However, they must be coming to the United States "to continue work in the area of expertise … .'' It is enough to show that such aliens will continue to work in their field of expertise. There is no specific requirement that they pursue the specific topics of research that brought them sustained acclaim.
Requirement of Substantially Benefiting Prospectively the United States
Aliens who intend to work in the area of their extraordinary (or exceptional) ability will substantially benefit the interests of the United States in some fashion should pass this test without submitting additional documentation. The INS regulations do not specifically require evidence on this issue. However, according to the INS there may be very rare instances where an extraordinary alien's admission may be damaging or detrimental to the interests of the United States.