On October 2, 2024, U.S. Citizenship and Immigration Services (USCIS) issued guidance that clarifies and broadens the eligibility criteria for individuals with extraordinary ability on the path for U.S. permanent residence (a “green card”). The guidance applies to petitions filed under the employment-based, first preference category known as EB-1A, an immigration classification designed for individuals with extraordinary ability in the sciences, arts, education, business, or athletics who can demonstrate sustained acclaim either nationally (within one country) or internationally (within two or more countries).

Employers and employees alike have focused more attention on the EB-1A category in recent years as government processing times for other green card pathways—particularly those requiring a test of the U.S. labor market in coordination with the Department of Labor—have grown significantly.

Unlocking Success:  A Closer Look at the Updated Criteria

Eligibility for the EB-1A category can be demonstrated through receipt of a major one-time achievement, such as a Nobel Prize or Pulitzer Prize. Alternatively, eligibility can be established by showing that the foreign national meets at least three of 10 statutory criteria for EB-1A classification, including original contributions of major significance in the field, authorship of scholarly articles, performance in leading or critical roles at distinguished organizations, and command of a high salary. If the individual meets that threshold, the agency will conduct a final merits determination to confirm whether the evidence in total indicates that the foreign national is one of the small percentage of individuals at the very top of their field. The new policy guidance affects criteria (i), (ii), (iii), and (vii).

Criterion (i):  Awards – The guidance explicitly includes team awards under the criterion for nationally or internationally recognized prizes, which means researchers, innovators, or other individuals who contributed as a team member can use this evidence towards establishing their EB-1A eligibility, even when they lack an individual award. Documentation of the individual’s participation as a team member is required.

Criterion (ii):  Memberships – Previously, USCIS focused on current membershipsin prestigious organizations; however, the new guidance states that past memberships are now recognized as part of the “membership” criterion. This provides petitioners more flexibility in demonstrating their eligibility, but the touchstone of the analysis remains how competitive the membership is to attain.

Criterion (iii): Published Material – USCIS no longer requires that the published materials about the individual explicitly demonstrate the value of their work, meaning that a broader scope of evidence may be accepted to meet the published material criterion. The evidence must still demonstrate that the forum for the publication qualifies as a major professional, media, or trade publication.

Criterion (vii): Exhibitions – While the new guidance does not directly loosen this criterion, it clarifies how comparable evidence may establish eligibility under this criterion. This criterion still contemplates public displays of artistic work, but the new guideline explains that evidence of non-artistic exhibitions (e.g., scientific displays, presentations, or product demonstrations) can be accepted when it is part of a well-supported comparable evidence claim.

Key Takeaways

USCIS released this guidance at the start of its new fiscal year, which suggests that it is connected to budget allocations designed to streamline adjudications of employment-based first preference petitions, including for the EB-1A category. The clarified scope of evidence establishing EB-1A eligibility seems to signal a policy trend toward assisting individuals in accessing the employment-based first preference category for green cards.  

Qualifying individuals may sponsor themselves for EB-1A classification without a formal job offer from a U.S. employer. Unlike several other classifications, an EB-1A petition does not require a test of the U.S. labor market in coordination with the Department of Labor, thereby shortening the overall processing time. Further, USCIS will take action on an EB-1A petition within 15 business days of filing for an additional fee of $2,805 (called premium processing). 

Additionally, the new guidance appears to be more than just a general update. The Biden Administration may be attempting to demonstrate its commitment to immigration reform, thereby appealing to pro-immigration business leaders and voters, by enhancing U.S. competitiveness and by attracting top-tier global talent. This new guidance may be particularly important for employers who are seeking to retain top talent, but are facing extended government processing times in other green card categories. The guidance is not applicable to the O-1 nonimmigrant category, which remains unchanged. 

Contact Mayer Brown for additional insights and guidance on filing EB-1A petitions. Please continue to follow updates on our blog, The Mobile Workforce.