EB-1A FAQ – 50 Frequently Asked Questions | SGM Law Group

EB-1A FAQ

As a highly prestigious immigrant visa reserved for only the most extraordinary individuals, the EB-1A carries with it many benefits. It’s a member of the EB-1 green card class, so obtaining one cab be difficult. If you have ever had a question about what goes into the qualifying and filing process, take a look at this EB-1A FAQ page to see if it falls into the 50 most frequently asked questions about this distinguished green card.

EB-1A Frequently Asked Questions

In order to categorize the following questions, we have grouped them according to their subject matter into:

Qualifications

Q. Who qualifies for an EB-1A green card?

The EB-1A is reserved for individuals who have attained extraordinary achievement in the fields of business, education, science, art, and athletics. Qualified applicants are at the very top of their field and are widely known within the industry. The work being done must also be in a position to have a positive impact on the U.S.

Q. How does the USCIS define “extraordinary”?

An “extraordinary” individual is one who has risen to the small top percentage of people in their field. This is proven by fulfilling the criteria for submittable evidence outlined by the USCIS.

Q. What evidence qualifies me for an EB-1A?

The evidence that can be submitted is classified into two groups. You can:

1. Demonstrate that you have won a major international award that is widely recognized. Examples include the Nobel Prize, an Olympic Gold Medal, or a Pulitzer Prize.

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2. Demonstrate that you have fulfilled at least three of the following alternative criteria:

  • Having earned a lesser award that is either nationally or internationally recognized
  • Maintaining a membership in a distinguished organization that requires extraordinary ability to enter.
  • Showing that there has been material published about your work in a reputable publication.
  • Having been an official judge of the work of your peers in your field. This can either be done on a panel or individually.
  • Demonstrating that you have made significant contributions to your field of a scholarly or scientific nature.
  • Having written scholarly articles published in major trade publications.
  • Playing a critical role in a reputable organization in your field.
  • Commanding a large salary that indicates your extraordinary ability.

Q. What are the rules surrounding lesser awards?

Like the above states, the award must be either nationally or internationally recognized in your field. Here is a list of items that do not qualify as lesser awards:

  • Academic grants or scholarships
  • Local awards
  • A prize awarded to a team does not hold as much weight as an individual prize awarded to you.

To help the adjudicating officer understand the nature of your award, you should include the number of nominations and what was required to win the award.

Q. How Do I prove my membership in a distinguished organization?

You will need to submit the qualifications for membership in the organization or association. It will also help if the individuals who choose members are considered experts in their fields on an international level. Being a member of a trade union or in a local organization will not be considered as evidence.

Q. What kind of published material about my work will be accepted?

This means that a major media network or publication must have published material that names you for your work. If you are simply an unnamed member of a team whose work was mentioned in a publication, it will not be highly considered.

Q. How can I prove that I was a judge of the work of my peers?

Simply put, you will need to show that you have sat on a panel of judges, led a workshop, or facilitated a discussion group at a national event in order to qualify. You will also need to argue what your role was and how involved you were in the judgment of the work of your peers.

Q. What kind of significant contributions are acceptable?

The contributions must be original as well as of a scholarly, artistic, business-related, or scientific nature. They need to do more than prove that you were successful, they need to prove that you are in the top percentile in your field. Because this is a very broad category, work with your immigration attorney to determine what qualifies you.

Q. What will the USCIS accept as evidence for scholarly articles that I’ve written?

You need to have irrefutable evidence that you are the author of each article. These articles must also have been published in scholarly or business journals that are nationally or internationally circulated in your field. Your articles may be less valuable if your field is one in which many people publish articles.

Q. I’ve played a critical role in a distinguished organization, how do I prove this to the USCIS?

You will need to explain the organization in depth and explain your role within that organization. Evidence that you led a successful project within the organization will be given more weight. If you are being considered to fill a role, this will not be used as evidence.

Q. How do I prove that I command a large salary for my work?

Submitting financial statements demonstrating that you obtain a high salary is a great way to fulfill this criterion. Your salary or compensation will be compared to that of other individuals in similar positions in your field. If it qualifies as being in the top percentile, it has a better chance of counting.

Q. Di I have to be in the U.S. to petition?

No, you do not need to be in the U.S. in order to petition. In fact, many EB-1A applicants petition from overseas. If you are not in the U.S., you will need to go through consular processing.

Q. Do I have to work in my field?

Yes. You will need to show that you intend to work in the field through which you have attained your extraordinary ability. This, however, does not prohibit you from working part-time in a different field.

Q. Do I need reference letters to qualify?

Yes, reference letters, or letters of recommendation, are required for the evaluating officer to not only understand your field, but also to obtain proof that you are recognized in your field. Because of this, the letters of recommendation need to be from prominent experts in your field. Letters from your peers or close colleagues may not count unless they are distinguished experts. It also helps if the author of the letter is uniquely acquainted with your work or research to give the officer a better idea of your qualifications.

EB-1A FAQ

Benefits

Q. Who is the petitioner in an EB-1A case?

One of the main benefits of the EB-1A green card is that you can self-petition. Of course, this does not prohibit you from having a sponsoring employer petition on your behalf. There are only a few green cards that allow the beneficiary to self-petition including the EB-5 for investors and the EB-2 with a National Interest Waiver.

Q. Do I need a job offer or PERM Labor Certification?


Fortunately, due to the fact that you can self-petition, you will not need a job offer from a U.S. employer. Subsequently, you do not need to go through the PERM Labor Certification process. If you choose to have a sponsoring employer, that employer will still not be required to acquire a PERM.

Q. How long does an EB-1A green card last?

Employment-based green cards are valid for a period of ten years. At the end of the validation period, you will need to apply to renew your EB-1A. As long as you have maintained your status (e.g. you are still working in your field, you have not committed any crimes, etc.), you should not have a problem renewing your green card.

Filing

Q. Which forms are necessary for the EB-1A?

The primary document you will need is the I-140 petition which can be found on the USCIS website. When your petition is approved and your priority date is current, you must file an I-485 application to adjust your status to legal permanent resident if you are currently in the U.S. If you are abroad, you will need to complete the DS-260 online immigrant visa application.

Q.  Where do I send the forms?

The I-140 and the I-485 should be sent to a USCIS service center. Ask your attorney to learn exactly where you should send your forms. The DS-260 is done online and is handled by the Department of State.

Q. How long will it take to process my petition?

The I-140 is processed by a local service center. The amount of time it takes to process your petition is dependent on the caseload of that particular center. However, based on reports from those currently petitioning for EB-1A green cards, it takes an average of six months for your petition to be processed.

Q. What documents do I need alongside the petition?

Along with the I-140 petition, you need to submit all of the supporting documents that go along with proving your extraordinary ability. This may include financial documents, letters of recommendation, bank statements, snippets from publications, published articles, or even a job offer if applicable. Ultimately, your attorney will know exactly what needs to be submitted along with your I-140.

Q. What kind of approach do officers take when evaluating my case?

The USCIS employs a two-part test to adjudicate your case. In the first prong, the officer will determine whether or not you meet the requirements. This means that the officer will be looking for either evidence of a major international award or evidence that you satisfy at least three of the alternative criteria. Essentially, the officer will simply be making sure that you have submitted enough evidence.

The second step involves the officer looking at the submitted evidence to determine whether or not each item satisfies the claimed criteria. If the officer feels like the evidence proves that you are in the top percentile of your field according to the qualifications, then your case should be approved.

Q. Can I use premium processing?

Yes, you can. The premium processing service is a feature that the USCIS offers to expedite the I-140 processing time. For an additional fee, you can have your I-140 processed within 15 calendar days.

Q. Is premium processing available for all green cards?

No. Premium processing is not available for I-140 petitions filed for the EB-1C or the EB-2 National Interest Waiver.

Q. Will premium processing increase my chances of approval?


No. It is a common misunderstanding that opting for premium processing either increases your chances or ensures approval altogether. In reality, it only works to expedite the I-140 petition. It also cannot be used to shorten the I-485 processing time or change your priority date.

Q. How long will it take to process my I-485?

The I-485, like your petition, is processed by a local service center. Therefore, it is also subject to how busy that particular center is. However, it also has an average processing time of about six months.

Consular Processing

Q. What is consular processing?

Consular processing involves making an appointment with and traveling to a U.S. consulate or embassy in your home country. This means that a consular officer from the Department of State will adjudicate your case rather than an officer from the USCIS.

Q. Who needs to go through consular processing?

If you are outside the U.S. at the time that your I-140 is approved and your priority date is current, you will be required to go through consular processing. If you are currently inside the U.S. working under a nonimmigrant visa status, then you have the option to go through consular processing or to file an I-485 to have your status adjusted.

Q. Is it better than adjustment of status?

This depends on your circumstances. If you have the option, then you will need to consider both the processing time and the hassle of travel involved. Consular processing requires you to visit your home country and attend an appointment with the U.S. consulate or embassy there. However, depending on how busy the consulate is, you may only need to wait a few weeks to have your appointment.

However, depending on how busy the consulate is, you may only need to wait a few weeks to have your appointment. On the other hand, an I-485 may take more than six months to process. You will, however, not be required to travel or to participate in an interview.

Q. What should I expect at the appointment?

You should arrive several minutes early to your appointment. When you arrive, check in and wait for your name to be called. When it is, you will be escorted into a room to have a one-on-one interview with a consular officer to determine if your case is legitimate. You may also have to have your biometrics taken (i.e. fingerprints, measurements). If the officer clears you, you will be able to enter the U.S. as a legal permanent resident. Your green card will be mailed to your address in the U.S. in about six months.

Q. Do I have to go through an interview?

In years past, EB-1A applicants have sometimes found that the interview requirement was waived for them on account of their qualifications. However, with the new administration’s plans for the immigration process, consular interviews may become a mandatory practice for all immigrants wishing to enter the U.S.

Q. What kind of questions will be asked of me at the interview?


Some of the more common questions that are asked at an EB-1A interview include questions about your work in the U.S., your experience, your extraordinary ability, and your arrangements in the U.S. Answer honestly and accurately. Not knowing is better than lying. Your attorney can accompany you to the appointment.

Q. What should I bring to my appointment?

First of all, you need to bring a print-out of the confirmation page for your completed DS-260 and a receipt of the payment you made. You also need to bring the following documents:

  • A valid passport along with any expired passports
  • A portrait photo of you that meets the requirements set by the Department of State
  • All supporting documents that stand as evidence of your extraordinary ability
  • Your resume or CV

Processing Fees

Q. How much do I need to pay for my green card?

Here is a quick breakdown of the fees that are required for your EB-1A:

  • I-140 basic filing fee: $700
  • I-145 filing fee: $750-$1,140. This fee depends on your age and is outlined in this chart.
  • Biometrics fee (if applicable): $85

In addition, you will need to take other costs into consideration such as premium processing, travel costs, and attorney fees.

Q. How should these payments be made?

The I-140 and I-145 filing fees should be made out to the USCIS in a money order or cashiers check. It is usually not advisable to combine the payments as it may cause confusion.

The DS-260 fee has a very specific payment method which can be viewed here.

Q. Can I get a refund?

Under normal circumstances, the USCIS is not in the business of handing out refunds. However, there are three situations in which you will receive a refund:

  • If the USCIS has requested a form that was not necessary and required a fee.
  • If the USCIS has asked for a fee payment that was greater than that which is outlined in their fee schedule.
  • The USCIS will refund your premium processing fee if it fails to process your petition within 15 calendar days.

Q. What about Premium processing?


If you would like to take advantage of the optional premium processing service, it will require an additional payment of $1,225.

Q. How much will consular processing cost?

Here are the fees associated with getting your green card through consular processing:

  • Biometrics fee (if applicable): $85
  • DS-260 fee: $230
  • Affidavit of support fee (if applicable): $88

Q. What are the attorney fees?

Immigration attorney fees vary widely depending on the law firm you choose to hire. You can view our flat EB-1A fees here.

Priority Dates

Q. What is my priority date?

Your priority date is the date that the USCIS receives your I-140 petition.

Q. How do I know when my priority date is current?

Each month, the Department of State releases a visa bulletin that displays the “final action dates” according to each green card category and the nationality of the applicant. When your priority date matches the final action date in your country and category, your date will be considered current.

Q. Are the EB-1A dates current?

Usually, you will be able to look at the charts and see that the EB-1 dates are all already current, meaning that you can file for an adjustment of status as soon as your I-140 is approved. However, there are times when certain EB-1 holders may need to wait several years before their priority date is current.

For example, as of June 2017, applicants from China and India must wait at least 5 years before their date is current.

Q. Why is there a long waiting time for some countries and not for others?


This is due to a backlog of petitions. The Department of State only issues a certain number of immigrant visas each year. Because countries like India and China often have more applicants than other countries, a backlog builds up causing those applicants to have to wait until a visa number becomes available.

Q. What should I do once my priority date becomes current?

This depends on whether you are planning on adjusting your status or going through consular processing. If you are adjusting your status, you can now file the I-485. If you are going through consular processing, you can now make an appointment with the U.S. consulate or embassy in your home country.

Denial

Q. Why was my petition denied?

If you have had your EB-1A petition denied, then the USCIS has disclosed the reasons for your denial in the letter that was sent. If you are interested in avoiding a denial or a rejection, here are some of the top reasons:

  • Mistakes on the petition
  • Improperly filed fees
  • Criminal history or a past violation of immigration status
  • Lack of EB-1A qualifications

Q. Is there a difference between rejection and denial?

Yes. A rejection means that an issue came up that caused your petition not to make it to the decision-making stage. This is usually due to a complication with fee payment or petition mistakes such as incorrect, inconsistent, or missing information.

Denial, on the other hand, means that your petition made it to the decision-making stage and was denied by an evaluating officer. The common reasons for denial are a criminal history or not passing the two-step test of evaluation.

Q. Can I appeal the decision?

If you had your status adjusted, you may have the option to appeal the decision with a third party, the Administrative Appeals Office (AAO). However, this is usually not the ideal case, as the appeal request could take a long time to process and the AAO often decides to uphold the original decision rather than overturn it.

The best way to go about doing this is to hire an immigration attorney to look over your case and see if anything was overlooked that could be brought to light about your case.

Q. What about legal motions?

There are two major kinds of motions that can be made here:

Motion to Reopen

A motion to reopen the case is meant for situations in which new evidence or facts can be presented that alter the case significantly enough to warrant requesting the original entity that evaluated your case to reopen it.

Motion to Reconsider

A motion to reconsider is appropriate for situations in which you and your attorney believe that the evaluating officer was wrong in his or her decision to deny your case. You will need to present an argument that shows how you meet the requirements from a legal perspective. This is not something that you should do without the guidance of an immigration attorney.

Q. Are there good alternatives to the EB-1A?


If you find that you do not qualify for an EB-1A, you may want to consider applying for an EB-2 National Interest Waiver. To qualify for this, you would need to prove that your work will have a substantial positive impact on the U.S. and that you are qualified to advance and promote that work.

Alternatively, you can apply for an EB-2 or EB-3. However, for either of these, you need a job offer from a U.S. employer and a PERM Labor Certification. Speak with your lawyer to find an alternative that best fits your qualifications and immigration situations.

Q. What about an RFE?

Sometimes, if the USCIS simply believes that the documentation is lacking, it may issue a Request for Evidence (RFE). If you receive this, you will have a limited window of opportunity to give a satisfactory response. The best way to handle an RFE is to have your attorney help you deal with it as soon as possible.

How Our Immigration Attorneys Can Help

The EB-1A is not an easy green card to obtain, but the benefits are numerous. Just because you can petition alone, doesn’t mean that you need to go through the whole process without help. Take care of problems before they arise by having an expert handle your case for you.

The dedicated and skilled attorneys at SGM Law Group have helped countless extraordinary individuals immigrate to the U.S. under EB-1A status. If you have a question that is not listed in the above EB-1A FAQ, you can ask it to our attorneys in person by filling out this contact form and scheduling your consultation today.