Immigrant Status, EB-1, Alien of Extraordinary Ability: Qualify with Credentials Beyond the Criteria / Comparable Evidence 8 C.F.R. § 204.5 (h)(4)

Every day, a nonimmigrant present in the United States checks the USCIS website for a case update. He or she has been waiting, and today, delighted, he or she discovers that the I-485 Application, based on a previously approved I-140, has been approved. The Green Card soon arrives in the mail. It is official, the individual is now a permanent resident of the United States.

The I-140 was approved, the National Visa Center sent the documents to the proper Consulate, the Immigrant Visa Application was completed, the fees were paid, the Visa Interview was completed, the Visa was issued, and an Officer at a United States’ Port of Entry admitted the individual into the United States.  The Green Card soon arrives in the mail. It is official, the individual is now a permanent resident of the United States.


Two avenues, one end game: Adjustment of Status or Admission into the United States pursuant to a Green Card which denotes Legal Permanent Resident Status.

It is no simple task to engage the Green Card process via employment-based preference categories. To avoid costly mistakes, individuals contemplating their path to the United States must diligently plan. Prior to filing a PERM or I-140, individuals need to examine some preliminary issues. As a first step, each person seeking a Green Card should verify that he or she complies with immigration status requirements, health requirements, security requirements, and other requirements governing Legal Permanent Resident status in the United States. Why? An approved I-140 Petition does not directly result in an issued Green Card; an approved I-140 Petition, simply demonstrates eligibility for a preference category. So, if a Green Card is the target, then a preliminary review of the intending immigrant’s history is pertinent to accomplishing your goals and avoid filing an I-140, or PERM, which will never lead to a Green Card.

Apart from admissibility issues, choosing the proper preference category is important as well. There exist multiple employment-based immigration options, and understanding each option is crucial to choosing the category which best fits an intending immigrant’s desires. If an individual has built a career, such that they are part of the small percentage of his or her colleagues who have risen to the very top of the field and sustained international acclaim, then the EB-1, Alien of Extraordinary Ability (EB-1 herein after) option may be the ideal choice. In an I-140 Petition, the EB-1 category is typically established by demonstrating qualification under at least 3 of 10 criteria listed in 8 C.F.R. § 204.5 (h)(3)(i)-(x) and succeeding on a final merit based determination.

Indeed, qualifying using the 10 criteria is a two-part inquiry. The first question is whether there exists any evidence which satisfies the criteria. This is merely a threshold inquiry. The second question becomes given the total weight of the evidence presented, does the record merit approval based on individual acclaim and extraordinary ability. To explain, consider the following criteria:

8 C.F.R. § 204.5 (h)(3)(vi): Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.

Submitting only one article from a major trade publication will satisfy the threshold inquiry, but having only one article with no citations does not carry much weight when considering indivdiual acclaim and extraordinary ability. Even if the threshold inquiry is met for all 10 criteria, it is still entirely possible that the total weight of the evidence will be insufficient to demonstrate the necessary acclaim.

Meeting the threshold inquiry is only half of the battle, so how does someone succeed on the final merit based decision? Enter 8 C.F.R. § 204.5 (h)(4):

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

This provision allows individuals to bolster their cases using any evidence which raises their reputation in the eyes of the Immigration Officer. This open-ended criterion can help save a case if utilized effectively.

The best part is that this provision can be used in nearly all cases. To invoke 8 C.F.R. § 204.5 (h)(4), the Petitioner need only demonstrate that one of the ten criteria do not apply to their situation. Consider the following criteria, 8 C.F.R. § (h)(3):

(vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;

(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Unless you are an artist, or a performing artist, you can invoke 8 C.F.R. § 204.5 (h)(4) by alerting USCIS to the fact that these criteria do not apply to your case. At this point, you may submit comparable evidence to establish the beneficiary’s eligibility. Two examples of such evidence are outstanding contributions to community and support from international experts.

Keep in mind, Petitioners should submit as much evidence as possible which fits under the criteria. 8 C.F.R. § 204.5 (h)(4) should be used strategically to bolster cases that may be on the edge of approval. No matter which route you choose, be sure to investigate for similar provisions to ensure that the strongest possible case is submitted. Taking the extra time might just be the key to earning your Green Card.