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How to Avoid the Dreaded Request for Evidence: I-140's

by Carl Shusterman

Strange as it seems, many people who qualify for temporary O-1 visas as persons of extraordinary ability do not automatically qualify for the permanent EB1-1 category even though the standards are the same. It is therefore important to prepare an I-140 petition for a person of extraordinary ability according to the statutory and regulatory guidelines in order to avoid a Request for Evidence:

  1. Ensure that all forms are completely filled out.

  2. Clearly document in a letter from the Petitioner, or from the alien if it is a self petition, how the individual is qualified for this eminent category.

  3. Ensure that the alien meets at least three of the required criteria as listed below. Although meeting three of the following ten criteria won't guarantee that the alien will qualify as an individual of extraordinary ability in the arts, sciences, education, business or athletics, if he can not satisfy at least three of these items, it may be wise to consider another category.

    1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
    2. Documentation of the alien's membership in associations in the field for which the classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines;
    3. Published material about the alien in professional or major trade publications/journals or other major media, relating to the alien's work in the field for which the classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
    4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or allied field of specification for which classification is sought;
    5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
    6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
    7. Evidence of the display of the alien's work at artistic exhibitions or showcases;
    8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
    9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
    10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.

  4. Clearly document through both primary and secondary evidence that the alien qualifies for each category. Three examples of this are:

    1. If the alien is internationally published, provide copies of the published papers and circulation information proving that the journal is internationally published;
    2. If the alien has received an award, show proof of the receipt of the award and then show the criteria for the award and why it is so important in that person's field;
    3. If the alien is highly paid, show that he is paid more than the weighted average by showing copies of salary surveys for that particular position.

  5. If this is an employer-sponsored petition, document the employer's ability to pay through

    1. Copies of Signed Corporate Federal Tax Returns;
    2. Copies of Audited Financial Statements; or
    3. If the company has over 100 employees provide a signed statement from the Chief Financial Offer (not the Human Resources Department) documenting the Petitioner's ability to pay.

  6. If this is a self petition, document the following to demonstrate how the alien intends to support himself through: a. Offer of Employment or Contract; b. Proof of Current Assets

  7. Remember that the BCIS (the agency formally known as the INS) will not approve an EB1-1 petition simply because the alien meets three of the ten criteria listed in number three above. An individual of extraordinary ability is one who belongs to that "small percentage" who has "risen to the very top of the field of endeavor".

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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