CASE: I-485 adjustment of status / I-140 / EB-11 (Alien of Extraordinary Ability)
LOCATION: Cleveland, Ohio
Our client contacted us in May 2014 about the possibility of getting an immigrant visa through the EB-11 category. He is an internationally known Pianist and is currently working as a pianist in the Cleveland area. Our client has received multiple international awards and has appeared in numerous recitals in several cities in the world. Also, has performed at the Carnegie Hall in New York City, and has been published in publications such as the Plain Dealer. Upon review of his credentials and qualifications, our office determined that he was qualified for the EB-11 category, an alien of extraordinary ability.
According to INA Section 203(b):
(1) Priority workers – visas shall first be made available… to qualified immigrants who are aliens described in any of the following sub-paragraphs (A) through (C):
(A) Aliens with extraordinary – an alien is described in this sub-paragraph if-
(i) The alien has extraordinary ability in the sciences, arts, education, business, or athletes which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
(ii) The alien seeks to enter the United States to continue work in the area of extraordinary ability, and
(iii) The alien’s entry into the United States will substantially benefit prospectively the United States.
USCIS has consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101st Cong.2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term “extraordinary ability” refers only to those individuals in that small percentage who have risen to the very top of the field of endeavor. Id. And 8 C.F.R. § 204.5(h)(2).
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements must be established either through evidence of a one-time achievement (that is, a major international recognized award) or through meeting at least three of the following ten categories of evidence:
(i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) 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;
(iii) Published material about the alien in professional or major trade publications or other 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;
(iv) 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;
(v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien’s work in the field at an artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
After review of our client’s credentials and qualifications, we determined that our client can meet 4 of the 10 categories, which is more than 3 required as an alien of extraordinary ability. Our client has been awarded numerous national and international awards for his piano performance; has made an original contribution in the musical field of piano performance; has participated in a judging panel in numerous prestigious national and international piano competition events; and his distinguished achievements and success in piano performance were published in professional and major media.
Our office prepared a 19-page brief for our client’s EB-11 filing. Our client also obtained 8 letters of recommendation from internationally well-known piano professors and players. Our office also included his performance coverage, awards, media coverage, medals, recital records, and other materials to show that he is an alien of extraordinary ability in piano performance. His EB-11 I-140 application contained 55 exhibits.
Our office filed his I-140 (EB-11) petition to the USCIS Nebraska Service Center via regular processing on October 31, 2014.
However, on April 13, 2015, the USCIS issued a Request for Evidence (RFE). In the RFE, the USCIS claimed that our client only met 2 of the 10 requisite statutory categories of EB-11. In the response brief, our office demonstrated that our client indeed met more categories and provided more letters of recommendations, media coverage documents, recent performance records, and leadership positions. Our office filed the response to RFE on June 19, 2015. Eventually, on July 7, 2015, the USCIS Nebraska Service Center approved his I-140 self-petition.
Once his I-140 was approved, our client retained our office again for his I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on August 6, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time. However, on October 9, 2015, the USCIS Nebraska Service Center issued a Request for Evidence (RFE) for his adjustment of status application. In the RFE, the USCIS claimed that our client did not comply immigration law while he was in OPT status. They also claimed he worked illegally while volunteering to provide piano lessons in Church. In response, we argued that his volunteer work was part of Church activities. He was not compensated for it, and it’s volunteer and charitable work that does not displace American workers.
Eventually, on December 8, 2015, the USCIS Nebraska Service Center approved our client’s adjustment of status application. Now, he finally is a green card holder.