EB1 Category: Leading or Critical Role

An employment-based, first-preference visa for extraordinary ability in the sciences, arts, education, business, or athletics, known usually as simply an “EB-1A”, is highly desirable for a number of reasons. It does not require a job offer, no labor certification is needed, and if you are approved you can immediately apply for your green card- there is currently no wait time for anyone because the annual quota is never reached. In an immigration system fraught with endless paperwork, renewals, and other pitfalls, the EB-1A exists as a relatively fast and straightforward way to get your green card and begin your American dream.

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The EB1 Green Card Consists of Several Categories

As with most good things, there is a catch. Proving to U.S. Citizenship and Immigration Services (USCIS) that you have an extraordinary ability is not at all a trivial matter. For better and for worse, USCIS has set up a system to determine if an applicant qualifies for an EB-1A, consisting of a two part analysis. First, USCIS determines if you meet the baseline criteria (which will be discussed below). Second, they determine whether your overall case indicates that you have truly risen to the top of your field and have sustained acclaim for your achievements.

The focus of this series of monthly articles will be on the first part of that analysis, as it is the first and most difficult step towards an EB-1A approval. We find that the vast majority of our clients who can meet that initial criteria also can satisfy the second part of the analysis.

EB1 Criteria

In order to show USCIS that you are extraordinary, you have to show that you have won a major, internationally recognized award (think Oscars, Nobel Prize, Emmy, etc) OR that you meet at least three of the following criteria, which I have simplified the language of here for your ease:

1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
2. Membership in associations that require outstanding achievements of their members, as judged by recognized national or international experts in their fields.
3. Published material in professional or major trade publications or other major media about the alien and relating to the alien’s work field.
4. Participation as a judge (individually or as a part of a panel) evaluating the work of others in the field
5. Original scientific, scholarly, athletic, business-related, or artistic contributions of major significance in the field
6. Authorship of scholarly articles in professional journals or other major media.
7. Display of the alien’s work in artistic exhibitions or showcases.
8. Leading or critical role within an organization or establishment with a distinguished reputation.
9. High salary or compensation for services in comparison to others in the same field.
10. Commercial success within the performing arts, as shown by either box office receipt figures or cassette, compact disk, video, or DVD sales figures.

All You Need to do is Satisfy Three of the Ten Categories

Given how few people there are who have won a major international award, most of our prospective EB-1A applicants have to choose three of the ten criteria to satisfy in order to win an approval. In this monthly series, I will be discussing one of these categories per month, and provide my basic advice for the best evidence to satisfy each.

Keep in mind that every case is different, and so sometimes the best evidence in one particular field would be less useful in another field. I myself have now had dozens of EB1 cases approved for our clients in all sorts of different industries, and I can certainly attest to how different one winning petition can be from another.

This guide will thus function as a “one size fits all” analysis. I will do my best to give a general understanding of one category each month, but ultimately nothing beats a consultation with one of our excellent intake specialists to better understand if the EB-1A is the best immigration path for you in particular.

This month, I will start the series with what is far and away the most popular category, Leading or Critical Roles.

Leading and Critical Roles Overview

Leading or Critical Role is a Great EB1 Category

This category is our most popular because it can apply to almost any EB-1A applicant. To satisfy the category, you must show that you have performed in leading or critical roles for organizations or establishments that have a distinguished reputation.

Note the use of the plural- generally, you must have at least two leading or critical roles that qualify to meet the criteria. In the past we have been successful getting clients approved who have only worked with one company, but for very many years. USCIS Officers seem to understand that being with a prestigious company for decades should not disqualify you from the category, but it is admittedly a risky strategy. A difficult officer can choose to stick to the strict letter of the regulation and require multiple organizations or companies.

Aside from that though, you can have any combination of roles to satisfy the criteria. If you used to be in a role that was considered critical and are now in a leading role, that will satisfy the plural requirement. If both roles are critical or both leading, that is fine too.

Part 1: Establishing Your Role

With that in mind, let’s turn to the requirements that prove an individual leading or critical role meets the criteria. USCIS first looks to determine whether you performed a leading or critical role, and then decides whether that role was performed for an organization or establishment with a distinguished reputation.

1. “Determine whether the alien has performed in leading or critical roles for an organization or establishment”

Were you Leading or Critical to the Organization

The single best piece of evidence that can explain to USCIS why you were leading or critical to an organization is a signed letter from someone at the company or organization who is qualified to speak on the matter. This letter would explain who the person signing it is, and then discuss why they consider the applicant to be (or previously have been) leading or critical. While I always try and get the signator themselves to write the letter because their unique expertise can make it that much stronger, more often than not our clients draft the letter with our assistance and get a current or former employer to sign it. I always push for two things in these letters:

First, get a high ranked person at your company to sign it. When a client asks me who should sign the letter I typically joke “start by asking the CEO, and then if they refuse move down the ranks until you find the highest ranking person possible to sign it.” It simply lends more credibility to the letter if a CEO, CFO, VP, etc. signs the letter as opposed to someone in middle management. If you can only get mid-level colleagues to sign, I would suggest getting two or three letters instead of just one.

Second, do your best to get the letter signed on company letterhead. While this is not required, I cannot stress enough how much better and more official a letter looks in our petitions if it is on letterhead. Don’t underestimate the value of an Officer reading a nice letter about you that also has a famous logo on it. We know HR departments can make this impossible, and if so a letter signed on plain paper still works.

Getting Your Critical Role Letter Signed is Extremely Important

If you are arguing that you are or were critical to a company, it is important to establish that your work was absolutely critical to the continued success of the company as a whole. It isn’t really the title that matters here (though that does help), but rather the work itself. For instance, if you are an engineer that came up with an idea that saved your company millions of dollars, you have a very strong argument that you were critical. Similarly, a lead actor in a movie is undeniably critical to the production.

Sometimes your company is so large that it is impossible for any one person other than a top ranked executive to truly be critical to its continued success. If that is the case, you should at least be able to explain why you were critical to important projects or initiatives within the company. For instance, it may be hard to prove you were critical to a company like Coca-Cola, worth many billions of dollars. If you happened to have worked on a successful ad campaign for them though, that could certainly meet the criteria.

If you are arguing that you are or were a leading figure in a company, things are a bit more straightforward. Here, you just need to establish your leadership position and what your duties were in that position. The letter from a colleague should explain the details of your tenure with the company, and how your leadership led to further success.

Supporting Evidence Can Help Bolster The Category

Whether you are critical or leading, it is important to provide specific details and examples whenever possible. Conclusory statements stating how great you are without detail are not going to cut it. As another example, if you did the cinematography for a popular movie, you would want to establish why they selected you, how your work differs from the average cinematographer, the methods you used for that particular film that helped make it a success, etc. A letter doesn’t have to be long, but it has to be long enough that the USCIS Officer comes away with a good idea of why you are as important as you claim to be to the company.

Supporting Evidence

While the letters alone can establish your role as leading or critical, it is good to provide supporting evidence of your work. The best supporting evidence is press about your work that names you specifically. Major media is of course the dream scenario, but we understand that the New York Times may not be knocking down your door to interview you about your career. As such, internal company newsletters recognizing you are also fantastic supporting evidence. Awards you’ve received from the company or anything else that goes towards you being important to that company is what we are looking for.

While a High Salary category discussion in full will have to wait for a future newsletter, I will mention here that if you are a very high earner, this also helps support your case that you are leading or critical to a company. If a company is paying you a lot of money, it creates an assumption you are doing important work.

Part 2: Distinguished Reputation

2. “Determine whether the organization or establishment has a distinguished reputation”

Showing the Organization Has a Distinguished Reputation is the Second Portion of This Category

Once you have established you were leading or critical to a company, you then have to show that company has a “distinguished reputation.” For many companies, name recognition alone would seem to meet this standard, but we go through our regular evidentiary analysis regardless. While it would be stunning for a USCIS Officer to not have heard of a company like Microsoft or Amazon, you never know who that person reviewing the case might be, and so we take no chances. There are three main ways to show a company is distinguished:

The first and best way is examples of press talking about the company. For instance, Apple has articles written about it every day in major newspapers and online outlets alike. With such a company, we would submit a few press excerpts to establish the company as having a high notoriety and therefore a distinguished reputation.

Second, awards the company has received can show off its distinction. Some public interest groups for instance might not command a ton of press attention, but are quietly doing highly valuable work they are recognized for. Company awards thus can establish distinguished reputation.

Finally, a global presence also can make a company distinguished. An oil company may employ tens of thousands of people around the world to do business in many countries. Evidence of that shows off a tremendous reputation. This is a really great way for global firms or businesses that don’t get much press to still qualify as distinguished.

If You Think This Category is Right for Your Contact Our Offices!

Once you have gotten to this stage and shown that a company is distinguished, you have completed the evidentiary standard for a critical or leading role. Now, we would just have to do it all again for at least one more critical or leading role to achieve the plural requirement.

Conclusion

I hope this article was helpful to you in getting a general overview of the EB-1A visa, as well as a more specific understanding of the evidence needed to satisfy the Leading or Critical Roles category in particular. I will be back next month to cover another category, but if you don’t want to wait, get in touch with us to see if applying for an EB-1A is the right choice for you!

Immigration Law Offices of Chris M. Ingram

US Immigration Law Offices of Chris M. Ingram
Chris M. Ingram LL.M., ESQ – Immigration Attorney
Admitted in New York.
Practice Specializing in US Immigration Law
401 Wilshire Boulevard, 12th Floor,
Santa Monica,
California 90401
Tel: 310 496 4292

Specializing in the E2 Visa, EB1 Green Card, L-1A Visa and O1 Visa and K1 Visa Marriage-Based Immigration. Attorney Chris M. Ingram is dedicated to providing the very best in US Immigration legal representation. Enjoy our website.

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