US Immigration: EB1-A Extraordinary Ability Green Card - Full Process

Sunday, June 23, 2024
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EB-1A is officially referred as employment-based, first-preference visa. This is the petition that fast-tracks your green card process. The major benefits for EB-1A are as follows:

  • Priority dates are much faster which means if your application is successful you can immediately apply for an adjustment of status (more on this below)

  • You can self-sponsor this petition and it’s not tied to your employer

    • You can also file this concurrently with your employer petition (EB2 or EB3)

  • It has a fast turnaround - if you do premium processing, you will hear back within two weeks

  • A: Regardless of education background, nobody is explicitly excluded from this category. Most applicants are researchers, professors, authors, musicians, artists, singers, conductors, composers, caligraphers, painters, directors, actors, athletes, martial arts masters, Qi Gong masters, models, inventors, entrepreneurs, etc.

Filing for an EB-1A takes a lot of time and effort, and USCIS places a pretty high bar for who it accepts as a candidate. However, it’s a massive win if you can cross this hurdle, since it allows you to be free from being tied to an employer and having to renew visas every few years.

What does a green card allow you to do that another visa (H-1B, L-1) does not?

Here’s a non-exhaustive list of things that a green card does you to do that other visas (H-1B, L-1, F-1) does not:

  • Employment-related
    • Start a business
    • Be unemployed for more than 2 months
    • Switch employers without paperwork
    • Be employed by a company that does not have to pay ~$10k to sponsor your H-1B
    • Access to certain jobs and awards that require US permanent residency
    • Make side-income from other jobs
  • Travel-related
    • Travel freely without worrying about H-1B stampings or being allowed back in to the US
    • Be in a different, shorter line at airports when you fly into the US
    • Go to Canada without a visa
  • Other
    • Study anything without a status change
    • Be able to freely sponsor family members

Things to Remember:

  • Document repository

    • Even before you begin your petition, I’d start collecting all the documents in one place online to make the process easier. From visas, to I-797 petitions, EADs, marriage certificate, birth certificate, paystubs - you’ll literally need all of them

    Number of criteria

    • Some people apply with just three (like me) and others apply with six. The general advice that I received for the number of criteria is quality and not quantity. Do ensure that the ones you have are watertight vs. simply aiming to add more criteria for the sake of making your petition look better

    Letters of support:

    • The most important part of your petition (imo) will be the letters of support that ascertain why you are extraordinary. These letters should ideally be signed by someone who is “famous” and is an expert in their field. It should be easy to google them - focus on folks who have been in the press or have a lot of publications

    • If you don’t know many people, start networking today to get to know them. A lot of people will sign these letters even if they don’t know you since they know how much of a pain this is. Pre-write all the letters to make sure it covers the points you want to cover and makes this extremely easy for them to sigh

      • Besides networking, you’d be surprised on how a cold email or cold DM on Twitter can work wonders. Don’t be afraid to reach out to experts in your field who’d be perfect candidates for your letters

    • Get letters from people who can ascertain that they don’t know you. One of the reasons for my RFE was my letters of support was only people I had worked with which led them to believe that my contributions didn’t make a “dent” in the industry

    Premium processing

    • There is a lot of debate whether premium processing helps (or negates) a decision since you are pushing USCIS for a quick decision. Having talked to 10-15 immigration lawyers, everyone has their own opinion. My advice is to apply for it so that you can get a quick answer vs. waiting months simply waiting for the USCIS to come back

    Final Merits

    • Between 2016-2020, I had heard a lot of cases where USCIS would accept the criterias but deny you based on “final merits” consideration. There are a lot of strategies to get ahead of this - make sure you ask the lawyer on how you are planning to tackle this in the initial petition itself

    • Have urgency Throughout the entire EB-1A process, I did not have any urgency. The reason was because I knew I could port over my priority date of 2018 from my EB-2 and renew my H-1B indefinitely in the interim. Because the EB-1 priority date, even for Indians, was current, I didn’t think I needed to move quickly. That was a bad decision because in August 2023, it has retrogressed).

  • Start the grunt work early Despite having a lot of external media references, I didn’t realize that legally these don’t really help me. What does help me, according to the law, is extremely specific types of “Judging” events, patents, articles written about me in my field of expertise, and other such things. There are a lot of little things you can do — events to go to, things to ask for — that you can do over 6-12 months prior to your actual application in the background to “strengthen” your case.
  • After seeing 5-10 friends as well as myself go through this journey closely, I truly belief the process is quite random and has no correlation with how genuinely valuable or impressive a person is. Plenty of people who are just generic L4 / L5 engineers at BigTech (and sometimes even much lesser known firms) managed to get their EB-1A. You can even see examples online. If you’re reading this, I’d highly advice you do not go through paid EB-1A services that anyone provides except a lawyer. 
  • I genuinely believe that anybody can get an EB-1A. Don’t be demoralized by the “Extraordinary Ability” clause. Just because a lawyer, especially your employer’s lawyer on retainer, tells you that your resume or background is “not suitable” for it, does not mean you should give up. These things held me back for many many years. Anyone can get this visa if they focus on it religiously.
  • The EB-1 is a zero sum game. Any good advice here merely hurts those who do not read the advice. At the end of the day, the number of people who will be granted this visa is capped and more people knowing how to do it just means the line is going to get more and more crowded. The sad reality is this — someone who has an already approved EB-1 with a recent, say 2022, priority date might have to wait longer because someone with an older EB-2 priority date reads this and applies to an EB-1 and ports over their 2018 priority date. To those people, I apologize.
  • Don’t listen to the rumors, embrace the randomness. There’s a lot of misinformation around the EB-1 process. “X doesn’t count.” “My lawyer is awesome because they did ABC which made my case go through.” “This guy is really good cause I (a non-lawyer) read his response to my RFE, and it was so well written.” “You might have a hard time with this category if you say X” Rumors around the EB-1 spread easily. Every lawyer has a different take. Every applicant has a singular data point that they generalize. And every RFE / rejection from an immigration officer cites reasons that other officers wouldn’t cite. As a result, everyone who has a successful application touts all the things they did as good advice. They’re almost always not — from all the data points I’ve seen, EB-1A is random and at the behest of your granting immigration officer. I’ve seen really strong people get denied and really weak applications get accepted. Remember — what is legally a strong case has little to nothing to do with how “impressive” someone is to you in real life.
  • Generally it is better to put on a strong showing for fewer criteria, than trying to do more but less well.
  • If you have a previously accepted I-140 from a lower preference (EB2 or EB3), you can use that date to accelerate your EB1 if your country is not current.
  • It helps to have access to famous people: senior executives, well-known professionals in your field, professors, public figures, etc. Cultivate these relationships early.
  • If you don’t already clearly meet these criteria, plan for one to two years to go meet them.
  • Get your letters on official letterhead, even if it’s not technically required. It can be a cause of RFE. In a pinch, a “personal” letterhead could do.
  • If your EB1 is approved, this means you’re almost guaranteed to also get approved for the O1 visa, which can be convenient if you need to work in the US while your green card is processing.
  • For people who are very likely to agree to sign a letter, it is better to pre-write the letter for them before you even ask if they want to do it. This way, you can immediately give them something to sign once they agree, saving yourself the back and forth from your lead going cold while your legal team works on the letter. You’ll be getting a lot of letters, so this adds up.
  • On non-immigrant visas like the TN, it is inadvisable to leave the country from the day you submit your application until you get your travel authorization, even if your application is accepted. This could last anywhere from 6–8 months. You should plan for this.
  • The country of the green card applicant is not based on their citizenship, but place of birth. A British citizen born in India is Indian from this perspective.
  • Spouses also get a green card if you file together. Ideally, you are already married when the I-140 is filed, but in a pinch, a spouse can be added after the I-485 is submitted, and before the green card is officially issued.
  • When challenging an RFE, it is best to also respond to the request, even if unreasonable, as a show of good faith.
  • USCIS publishes a policy manual with a detailed explanation of how adjudicators should think about EB1 eligibility and references specific articles of law.
  • One increasingly popular form of denial is granting all the criteria, but denying the final merits. In anticipation of this, it is helpful to explicitly address this requirement in I-140 application.

Prior to an acceptance, there’s a reasonably high chance (~50% anecdotally) that you may get an RFE (Request for Evidence) or a NOID (Notice of Intent to Deny). In the several I’ve seen through my friends, they’re rarely based on the merits of your case but nitpicking at legal language. In the case of a NOID, my lawyer asked me to withdraw and refile since changing the decision is unlikely. In the case of an RFE, you typically submit more evidence.

Even though there’s some self-selection here (e.g. plane with bullet holes picture, completion rates for the marathon are usually way higher than completion rates for the easier half-marathon), the point I’m trying to stress on is that not all EB-1A applicants are super well qualified and the approval rate is actually pretty high compared to other more selective processes, like college admission.

As far as I know, there’s also nothing prevent you from applying again in case of a denial.

What is a reasonable timeline?

Your timeline for preparation of the application will vary drastically depending on (a) how much of a perfectionist you are (b) how many of the criteria you can meet with no additional effort (c) how much free time you have.

With focus, even if you have to put in some legwork to meet more criteria, I’d say:

StepTimeNotes
Acquiring all the evidence and letters4-12mosDepends on much prep-work your application needs and how quickly you do it
Polishing and submit petition (I-140) with your lawyer1moDepends on lawyer’s responsiveness
USCIS decision0.5moYou should use Premium Processing
Additional time to respond to RFE2moDid you receive an RFE?
Filing adjustment of status (I-485), EAD (I-765) and AP (I-131)1mo“Date of Filing” must be current on latest visa bulletin
Submit Biometrics0.5moYou will receive a letter in the mail to go on-site to a local USCIS office.
Receive work (EAD) and travel (AP) document3-4moCannot travel while AP in progress. As of 2023, they should both be valid for 5yrs.
Receive green card6-9mo“Final Action Date” must be current on the lastest visa bulletin

Total: 24 months

After you’ve received your approval, you can check processing times here and check the last status of your application with your receipt number here.

As of Oct 4, 2023, the EB-1 “Final Action Date” was Jan 1, 2017 and the “Date of Filing” is July 1, 2019. My old priority date, which I retain was July 13, 2018. This means I can begin filing for my EAD (Employment authorization document, a work document) and AP (Advanced Parole, a travel document) and be able to travel and work outside my H-1B. However, I need to wait for the Final Action Date before the government official grants me a green card / permanent residence — depending on how quickly the visa bulletin moves, this could mean 1-1.5yrs. And I can become a citizen 5 years after that. Now, apparently they are granting EADs and APs for 5 years at a time. Here are some advantages of even an EAD and AP over an H-1B:

  • You can change jobs without additional paperwork
  • You can be unemployed (for more than 2 months)
  • You can start a company. Your employer no longer needs to sponsor you.
  • You can travel internationally without having to worry about getting your H-1B renewed every 3 years and stamped — a process which can take a really long time for Indians too. — Your dependents are covered by it

Here's what you need to enter to get the appropriate processing times for your EAD / AP and Green Card. Anecdotally, I've heard it can take much less than this time.

How do you qualify for an EB-1A?

To get an EB-1A, you have to pick a “field of expertise” and justify your excellence in that field. It is “self-petitioned” and does not need to be supported by your employer.

Once you build this evidence and file your application, USCIS uses a two part system to adjudicate its decision:
a) it checks if the evidence provided against each criteria is satisfactory and if so then b) it looks at the total evidence to determine if the applicant has “extraordinary ability” which it calls the final merits determination.

  • Meeting at least 3 of the 10 criteria.
    • Awards — Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
    • Membership in “outstanding” associations — Membership in associations in the field for which classification is sought that require outstanding achievement of their members, as judged by recognized national or international experts in their disciplines or fields.
    • Published Material — Published material about the person in professional or major trade publications or other major media relating to the person’s work in the field for which classification is sought. Such evidence must include the title, date, and author of the material, and any necessary translation
    • Judging — The person’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought
    • Original Contributions — The person’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field
    • Scholarly Articles — The person’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.
    • Artistic Exhibitions — Display of the person’s work in the field at artistic exhibitions or showcases
    • Leading or Critical Role — The person has performed in a leading or critical role for organizations or establishments that have a distinguished reputation
    • High Salary — The person has commanded a high salary, or other significantly high remuneration for services, in relation to others in the field
    • Success in Performing Arts — Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales

    • Commanding a high salary: With the Opendoor IPO, I had an abnormally high income year in 2021 so this one was an easy criteria to satisfy. Even without a major liquidation event, if you work in tech, you should be able to satisfy this criteria relatively easily. Your lawyer will give you benchmarks and you can justify this by looking at salary information on Glassdoor, LinkedIn and others

    • Original contributions: We were able to showcase that my contributions were unique and industry defining by pointing to examples that competitors copied (e.g. Zillow copying iBuying, Amazon copying address-free shipping) and by press that the features I launched received

    • Leading a critical role: By this stage of my career, I had worked in 4-5 companies holding an important product role in all of them. Through letters of support mostly from my employer’s CEOs, we were able to ascertain that my role was critical to the success of the company

      • Other criteria we considered that we could build potentially towards:

      • Judging: I had started asking around on how I can take part in hackathons and events to build up evidence for this criteria

      • Publications/patents: Although USCIS defines articles as “scholarly”, I had a few friends with successful petitions who built it on the back of a few “viral” articles and podcast interviews as evidence

      • Making major and original contributions to your field: My contribution to the field was the creation of a popular Figma plugin called Autoflow. At the time of application, it had been installed more than 250,000 times and was used by teams at large well-known companies. I was lucky to have met Dylan Field, the CEO of Figma, at an event at a time when they happened to be opening up the plugin program to alpha developers and managed to become one of the launch plugins six months later, leading to a ton of organic growth. The supporting evidence in my package included install and usage statistics, and a letter from the CEO of Figma speaking to its importance, and screenshots from blogs discussing the plugin.

        Performing a critical role in well-known organizations: In my day job, I’ve led the design of several high-profile projects at Coinbase, most notably the rewrite and redesign of both mobile applications. We also included several projects I’ve been a small contributor to as a contractor at Google. The final evidence includes a letter from the CEO of Coinbase and letters from a product manager and design executive at Google.

        Commanding a high salary: thanks to the recent Coinbase IPO and generally competitive bay area tech designer salaries, we were able to demonstrate that I was paid well above the average of my field by drawing comparisons to several salary aggregator websites like Glassdoor.

        Judging the work of others: I judged five university hackathons. Two hackathon organizers issued letters detailing the merits on which the applicant was selected as a judge, as well as a list of other judges, which included executives of well-known companies, professors, and public figures. This criterion seems generally pretty easy to hit as it’s worded fairly generously, though meeting the strict minimum as I did might not contribute as much to your final merits.

        Writing articles in professional publications: I spoke in a mix of podcast, local, and online events, both individually and as part of a panel. Though the criteria technically asked for scholarly articles, we figured that if we can get a reputable academic (we got a VC and lecturer at the Stanford d.school) to say how the product design field shares professional findings in podcasts and talks instead of journals, that we can make my public appearances count.

  • Final Merits determination — a subjective evaluation of your application in its entirety to determine whether you’re eligible. This is the section where you list all your accomplishments cohesively and ascertain that you have “sustained national or international acclaim and recognition in the field of expertise, and is one of that small percentage who has risen to the very top of their field of endeavor”

Note: There’s some different rules regarding the criteria for professors/researchers (EB1-B) and for managers/executives working in other countries (EB1-C)

When you build an application, you also need to provide 5-8 letters of recommendation from experts in the field who both know you directly and indirectly who can attest to your work and ability to meet these criteria.

Eventually, the core of my case was a 44 page written argument about the 8 criteria I applied for (all except Success in Performing Arts and Artistic Exhibitions), although many recommend applying with a few stronger criteria.

I don’t think I meet any of these. How can I change that?

Don’t fret. Most applicants go out and do things specifically so they can get evidence to meet these criteria. In my experience, there are people with barely any evidence for 3 categories who get approved on the first try and others with tremendous evidence and a long history of success who take multiple attempts to get approved. Ultimately, the decision is made by a single officer within 10-15 minutes and is not reproducible, just like admissions into a college. That officer has little to no understanding of what consitutes “impressive” or meaningful in your field. They just read your application and attempt to insurance that it meets a legal definition.

Here are some things you can do to build your profile for an EB-1A:

  • Judging
    • You can simply go online and apply to be a judge in the following awards. They’re pretty pointless awards but they help strengthen your app. While I was applying to these, I found so many of my friends’ profiles on these websites and realized that they did it for their EB-1! These award programs typically have one of their many categories active at different times of the year. I would estimate ~3 months to register, be accepted, judge ~50 submisions and get a public or private certificate.
    • You can use code reviews of popular open source repositories as “reviewing the work of others”.
    • You can use judging hackathons here, as long as they’re not student events.
  • High Salary

    For entrepreneurs or founders of startup businesses, officers consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders in evaluating the credibility of submitted contracts, job offer letters, or other evidence of prospective salary or remuneration for services.”

    As another example, if the petitioner demonstrates that receipt of a high salary is not readily applicable to the person’s position as an entrepreneur, the petitioner might present evidence that the person’s highly valued equity holdings in the startup are of comparable significance to the high salary criterion.

  • Leading / Critical Role
    • This is pretty easy to prove through letters from people who are familiar with your work. Many jobs can count towards this, including
      • Senior research position at academic or non academic institutions
      • Founder / cofounder of startup with distinguished reputation
      • Leading / critical role of a distinguished organization, as explained by a letter from a director / principal investigator of the org.
    • Well-funded startups count as distinguished reputation
    • The letter should contain
      • Intro and background of author
      • About the company and its own accomplishments
      • Description of your leading role
      • Description of your critical role
      • How your work impacts the company as a whole
      • Why the petitioner is “top” of their field
    • When getting letters, I would draft the letters myself and ask them to sign it. Most expert reviewers do not have the time or knowledge to draft a useful letter.
  • Original Contributions
    • Patents help here — both pending or granted!
    • Published and cited research can also help here
    • Proof that the product you’ve built is commercially used widely.
    • Can use published material about the significance of your work.
    • Letters from experts talking about the nature and significance of your contribution, with info about the author’s expertise.
  • Scholarly Articles
  • Membership in Associations
    • IADAS (International Academy of Digital Arts and Sciences) is trivial to apply to and get membership in, but is a well-recognized association that meets the EB-1 criteria. You can get this as a part of the Webby Awards which is used for Judging.
    • The criteria for this is open to interpretation. The USCIS uses this example as sufficient:

    may include membership as a fellow in a scientific society dedicated to artificial intelligence if the membership is based on recognition of a nominee’s significant, sustained contributions to the field of artificial intelligence, and a panel of current fellows makes the selection of new fellows.

    • You should be able to use Y Combinator, certain “hacker” group memberships, company memberships and more.
    • You can try to become a member of various open source organizations based on the merit of your contributions.
  • Published Material
    • You can use Trade Press Services, as mentioned above in “Scholarly Articles”, to aim to get articles written not just by you, but about you.
    • You can appear on podcasts, try to work with media organizations to get them to write about you, or be written about in a book.
    • Being written about even on tech blogs and several lesser known online articles can help, but you will have to cite readership numbers.
  • Awards
    • While many think this award has to be of “Nobel Prize” level, it does not according to USCIS themselves:

    however, there is no specific requirement that an award be open to all members of the field, including the most experienced, in order to meet the requirements of this criterion. While limitations on competitors can be a relevant factor, in some instances the evidence may establish that an award or prize is nationally or internationally recognized despite being limited to youth, amateur competitors, or early-career professionals.” as well as “an award available only to persons within a single locality, employer, or school may have little national or international recognition, while an award open to members of a well-known national institution (including an R1 or R2 doctoral university) or professional organization may be nationally recognized.

    • You can count certain kinds of funding or membership to startup incubators like Y Combinator and South Park Commons as “awards”.
    • You can definitely use winning hackathons as an award, so long as they’re not “student” hackathons.

Most of the friends I know use Leading / Critical Role, Judging and High Salary. The other criteria may also be relevant to you. If you’re an artist, the two criteria I didn’t cover for artists I hear are fairly easy to prove with some effort.

Recently, USCIS introduced the Comparable Evidence clause which states that if a certain criteria doesn’t apply to your profession, you can change it. This can be used to your liberty, but the USCIS calls out certain things explicitly

  • Presentation at a conference / trade show is a substitute for scholarly articles

For instance, if the publication of scholarly articles is not readily applicable to a person whose occupation is in an industry rather than academia, a petitioner might demonstrate that the person’s presentation of work at a major trade show is of comparable significance to that criterion.

  • Equity counts as high salary

receipt of a high salary is not readily applicable to the person’s position as an entrepreneur, the petitioner might present evidence that the person’s highly valued equity holdings in the startup are of comparable significance to the high salary criterion.

  • Use open-source as comparable evidence One could argue that Github code reviews for important open-source repositories are evidence of “Judging”, that forks on a repository you own or contribute to are examples of “Published Material” about it. Or that a lot of stars is representative of wide use and that it can count as an “Original Contributions”. Or that being an owner of a popular widely-used repository can count as “Membership in Associations”.

Here are a couple of miscellaneous other tips that can help your application:

  • Read through the Kazarian vs USCIS case in detail. It is the case USCIS officers will cite the most often to make your decision. If you study the case, you’ll have the same information the officers do to assess whether you meet a criteria.

  • Draw attention to relevant parts of evidence When submitting evidence, make it amply clear with outlines and arrows where your name is and any other relevant information. Don’t give the officer more work.

  • Use ChatGPT! I find it helpful to rephrase technical language in letters in ways that audiences unfamiliar with the material can understand.

  • Email screenshots are evidence Use of emails inviting you to events or thanking you for judging an award, or accepting you as be a member of an association.

  • Use the NSTC CET (Critical and Emerging Technologies) document Another part of securing an EB-1A visa is proving that your entry to the US will substantially benefit the US. To that extent, use the NSTC (National Science and Technology Council)’s CET list to reinforce the value of your area of expertise. Some broad buckets they list include:

The 19 Critical and Emerging Technologies as determined by the NSTC that can prove that your area expertise is valuable to the US.

What do I do for my letters of recommendation?

The 5-8 letters of recommendation that are required with your application not only help your entire application but can be specifically used to make a case for several categories, such as leading and critical role. The general structure of a letter is:

  • Should be about 2 full pages in length.
  • Introduction of the recommender to show that they are an expert in the field and qualified to write a recommendation letter.
  • How well the recommender knows you and your work, whatever it may be.
  • What the recommender thinks about the importance of your work and specifically your contribution to it, using as many objective numbers as possible.
  • Whether the recommender thinks you are indeed at the top of your field.
  • Conclusion: an explicit recommendation.

It is very critical to abide by the above structure for a successful application. Usually, the strategies to pick recommenders are:

  • The more important they are, the more valuable.
  • Pick a variety of people including your manager now, but not more than 1-2 persons from the company you work at, as well as general industry experts from other companies, different geographies and of varied insight into your work.
  • Have a couple recommenders who do not personally know you, but know of your work.
  • Write your letter and send it to them and have them sign it — few people have the time to draft an entire letter.

  • Reference Letters

    I had 8 reference letters from professors in academia as well as industry managers. They are ideally from people that are well-known in their field of endeavour (e.g. professors known in their research fields, people in mid-/upper-management in companies, etc …). They should also provide substance by talking concretely about your projects, so it’s important that they know you or have heard of you. It is also important that they provide evidence towards those specific criteria that you chose: so if you choose to provide evidence for the leadership criterion, they need to talk concretely about specific organizations/key-projects/etc where you were a leader.

    Reference letter writers should also ideally not be in your immediate collaborator circle. Rather it can be someone who cited your work, used your work for developing a downstream project, or who used your work towards building a product in their company, etc … It is important that they not only describe your work, but highlight the impact your work had in the academic field or in their company.

    If any of them were very busy, I offered to draft the letters myself, and they had the option to change anything before putting it in letterhead.

 Here is a summary of the arguments for denying the others:

  • Awards — says there was not enough documentation on the (a) criteria for the awards (b) info on reputation of who gives the award (c) eligibility and significance of the award (d) how the award was given. They wanted a copy of the award, photo of it and a public announcement.
    • This is all bogus, since the application clearly had all of this evidence, in plentiful detail.
  • Membership in Associations — says there wasn’t enough documentation on (a) how membership is determined (b) qualifications required by application reviewers.
    • This is partially bogus. Although arguably we could’ve provided even more information, I think this was amply documented.
  • Published Material — says “published material may not be about your work, but about you. Some of the articles do not mention you at all and cannot be considered primarily about you”
    • This is bogus. Out of 20+ articles I submitted, they cherry-picked one article which was more about cricket than me, but did clearly mention by in a whole paragraph and my work on Google cricket.
  • Original Contributions — cites letters and says “does not demonstrate that the innovation is widely used.” and says “author does not explicitly name the technology (in the letter)”.
    • Again, bogus. The part of the letter that does not mention the technology is true, but the next paragraph does. There is an exhibit of all of our company’s enterprise contracts that show that they use the technology that was clearly ignored.
  • High salary — says “generic online salary data does not state what the very top software engineers and developers earn above the 90th percentiles in their data.”
    • This is so bogus that by the time you read this, you can tell the officer does not want to approve this application. It is amply clear from the numbers that the cited salary + equity numbers add up to a very high percentile of any public salary standards. And this is a tenured officer who sees plenty of EB-1A applications and should be well aware what kind of salary is exceptional and not, instead of denying the criteria because on account of the public data in this application. Remember, USCIS issued a clarifying statement saying equity counts towards the high salary criterion.

Finally, the Final Merits criteria was rejected because of lack of “preponderance of evidence” on various criteria they did accept. The legalese language translates to “you did say X, but X isn’t enough by a preponderance of the evidence”. It cited the case Kazarian vs USCIS repeatedly, a case you should absolutely read through if you’re applying to the EB-1A and tailor your application’s language to.

When the denial hit, my lawyer recommended I withdraw my application (instead of keeping a denial on my record) instead of trying to fight it in 30 days. She said that the officer is unlikely to budge after issuing a NOID (denial notice). When we reapplied, 99% of the application remained the same except

  • small changes to how the letters were drafted
  • an additional recommendation letter
  • reducing some information in “Published Material”
  • specifically calling out even more clients that our startup (Glean) has dollar-value contracts with in a letter
  • adding more of the contracts above as evidence

With a near identical application, and it was approved without an RFE in 7 days!.


Once you submit this application, the decision you get from USCIS will be one of three things:

  • Approved - your petition is approved - rare

  • Request for Evidence (RFE) - USCIS asks for more evidence on one or more criteria to help inform them further - most common

  • Denial - your petition is immediately denied - very rare


RFE & Denials

If you get an RFE, the USCIS officer will lay out the reasons on why the evidence provided to satisfy the criteria is unsatisfactory and a time period that you can respond by to provide more evidence. If you are able to provide the right details that satisfies the USCIS officer, then your application will be successful. If not, then your application will be denied

In the last few years, we have also started seeing that the USCIS officer determines that you satisfy all the criteria but don’t meet the final merits bar and hence your application is denied. These instances are definitely lower in the Biden presidency.

However, do note that denials are not final - you can refile your EB-1 as many times as you want. There are many many people who have got an approval after filing it 2-5 times as they tweaked their application by incorporating arguments from the RFE/denial.

USCIS has started to be more stingy with EB1s so expect an RFE. More often than not, you are going to get one (or more).

As I mentioned before, it mostly depends on how good your lawyer is in framing your case. I also got an RFE as USCIS asked for more proof on some criterias. Worry not, the laywer has to reframe the case and add some more evidence.

Of note, I was highly impressed by the amount of detail; convincing counter-reasoning in the USCIS's RFE and the response my lawyer wrote to tackle it.

We applied with premium processing (this guarantees an answer in 14 days for an extra fee of $2500) and received an RFE within 10 days. They accepted the leading a critical role criteria but pushed back against the two criteria:

  • Salary - this was a technicality since the “product manager” role is not in the USCIS handbook so we had applied with a separate role type. They seemed to have an issue with what we compared against.

  • Original contributions - USCIS argued that my contributions were not industry defining since most of my letters were from people I knew

We wrote a detailed pushback, got new letters of support from additional “famous” people who didn’t know me and sent in our response. Within a few days, the response was met with a denial. They said that I met the salary criteria, but didn’t meet the original contributions criteria. This was heartbreaking but also not very uncommon. My lawyer said that there was no point responding to a denial since that can take years, and we decided to refile our EB-1 petition

Refiling EB-1A

Refiling the EB-1 petition was pretty straightforward since we had most of the material from the previous petition. This time around, we restructured our petition to take into account the arguments they had and highlighted those areas specifically.

The final criteria that we needed to prove was “original contributions”. In order to do so, we decided to exclusively focus on third-party letters of references from executives who didn’t know me to share how my original contributions were truly path breaking. We still included all the evidence for salary and leading a critical role but we made it clear the USCIS already had accepted that the requirements has been met. We also wrote some additional language of how I intended to stay in product management after getting my green card.

It took us about 4-5 weeks to get it all wrapped up and we applied with premium processing again. This time we got an immediate approval within 8 days. I used to keep refreshing the case status page every few hours and I simply couldn’t believe my eyes when I finally saw the approved status!

Premium Processing vs. Regular Processing

Most lawyers refrain from applying EB1s with premium processing. I have consulted multiple lawyers and the consensus is that the cases with premium processing have higher chance of getting RFEs than regular ones. I am not sure what causes this to happen inside USCIS. Maybe it's just their trick to push the can down the road but this means that you will have to wait 6-12 months for your case to be adjudicated.

Concurrent filing of I-140 and I-485

Given that I used Premium Processing (PP), I did not submmit it concurrently with I-485 because I could hear back from the I-140 petition in max 2 weeks. If you submit an EB2-NIW, it is probably better to submit concurrently because the criteria is easier to satisfy and they do not have PP.


What lawyer should I use and how much does it cost?

Given that this is an application about my work, I decided that it was best if I present it myself instead of delegating a lawyer to do it. Put otherwise, I strongly believed I could do a better application since I knew my work best, as opposed to a lawyer who would’ve just met me.

In addition, even if you go with a lawyer, you still do 70-80% of the work yourself: they ask you to fill in an 80-page form describing all your work so far, you have to gather all evidence (scientific articles, diplomas, transcripts, reviews you did, …), you have to draft the reference letters and email the letter writers yourself, etc … Some lawyers offer to draft the reference letters for you, but I don’t understand how they can do that since they don’t know what your interaction was with the letter writer. And you need to have several zoom calls with the lawyer, go back and forth with the documents (they send you written feedback on the drafts, etc ..), and that can easily take several months. If you work full-time on it, you can finish it in approximately 1 month.

I used Alcorn Law and Sophie Alcorn as my lawyer. She charges $11,750 for a 12-week EB-1 I-140, $700 for I-140 filing and $2500 for Premium Processing. She charges extra for RFE hourly at $350/hr for an attorney. This is a total of $14,950. My successful application went through her, and I highly recommend her.

A good lawyer is also very expensive so expect to spend invest anywhere from $15k to $25k or even more. I would recommend not using your company's lawyer or a big firm considering your non-research profile requires a more unorthodox and personalized petition specific to your profile and will not fit the boilerplate template that these bigger firms tend to use.

My previous lawyer, whose name I will not disclose, but is very popular in immigration SEO, charged $8800 for a 3-category case and $1500 more for an extra category and the standard $3200 filing fee for a total of $13,500. I used them for a while, but I was dissatisfied at how many times the person working on my case changed, the primary attorney had a severe tragedy, and they didn’t seem regularly responsive enough. When a friend moved to Alcorn from this firm and reported a much better experience, I followed suit.

Other recommendations from friends:

  • Lima by Rajat Suri charges $20k for application and $20k on approval.
  • Project Law Group under Wells Wakefield charges $11k only on approval with additional filing cost of $3.2k separate. They offer a free refiling as well. This is the best deal I’ve seen for applicants, but this was a special offer for a candidate who had already done some prep. They may ask for some money upfront.
  • Bay Immigration Law under TJ Albrecht has stellar reviews and they do applications for a lot of founders and startup employees in the Bay Area. I believe they charge ~$12.5k.
  • Nadia Yakoob and her firm is quite popular in the Bay Area, particularly for entrepreneurs.
  • North America Immigration Law Group (Wegreened.com) and Victoria Chen charge $2.75k on filing and $2.75k on approval.
  • Wright Law Firm and Chris Wright
  • Legalpad, a company by Deel who provides green card services
  • Plymouth, run by Lisa Wehden specializes in O-1As, the non-compulsory H-1B equivalent to an EB-1A. They charge $10-12k and are widely used by startup employees and founders.

I do not recommend company lawyers or those without explicit experience in EB-1 applications like Fragomen and BAL Global. They’re neither experts nor incentivized to make your case successful.

What about filing without a lawyer?

I actually do recommend this. Although applying for an EB-1A is a long, tiresome process that involves a deep understanding of the law:

  • it can also be an expensive process.
  • It can be demoralizing when a lawyer authoritatively says your case is not good enough even though they’ve only seen 10s of them.
  • Even when you use a lawyer, you do 70-80% of the work yourself.
  • It can be frustrating to work with paralegals and attorneys who do not understand your field or your work.
  • You are just another client for them, even though your future hinges on this. They will not resonate with the high stakes situation.

It’s important to note that the entire business model of lawyers is to tell you that you cannot possibly do it on your own and that you need their legal expertise. The “95%+ success rate” your lawyer boasts is something every lawyer boasts, but not something you can actually verify. You can instead pay a much smaller ~$250 fee by simply consulting a lawyer for feedback after drafting your EB-1A application yourself.

I personally enjoyed working with my lawyer, and having a lawyer gives you security and confidence that you’re not doing anything wrong. However, I don’t feel like there was anything in my final petition that I couldn’t have written myself using these examples.

What are some common EB-1A myths? Are there examples of “normal” people who got an EB-1A?

  • You’re not a “Nobel” prize winner and don’t have the “Extraordinary Ability” to deserve an EB-1A — many people who have successfully gotten an EB-1A, including me, are nowhere close to a “Nobel” prize. The USCIS says the EB-1A requires:

    a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor

    Remember, an EB-1A at the end of the day is an objective legal judgment on whether you fulfil a set of requirements — “small” and “top” and “field of endeavor” are not clearly delineated concepts here. Take a look at the credentials of certain people who have been approved for an EB-1A to benchmark yourself:

  • Your equity / stock grant does not count towards your “high salary” criteria — it does and USCIS says so too!

As another example, if the petitioner demonstrates that receipt of a high salary is not readily applicable to the person’s position as an entrepreneur, the petitioner might present evidence that the person’s highly valued equity holdings in the startup are of comparable significance to the high salary criterion.

  • You don’t have enough citations to meet your “scholarly articles” criteria — there are cases where very low citation counts are accepted for this criteria. I only had 46 citations to meet this criteria, and I’ve heard of as low as 7 citations (example)! It’s a commonly heard myth that “you need 500+ citations” or some such number that usually just discourages applicants.

  • You need to be on an O-1 before you apply for an EB-1A — You can apply for an EB-1A while being on other statuses (H-1B, L-1, F-1). You can even apply for an EB-1A through consular processing without even being in the US. Having an O-1 does help though:

Though the prior approval of an O-1 petition is a relevant consideration and can be an indicator of eligibility in adjudicating an immigrant petition for a person with extraordinary ability, it is not determinative… For this reason, where possible, officers issuing denials in such cases should provide a brief discussion as to why, notwithstanding the previous O-1 nonimmigrant visa petition approval

  • You should keep your EB-2 date if you’re close instead of getting a new priority date for my EB-1A — If you have a prior EB-2 / EB-3 application, you can port your priority date over from that and won’t get a fresh date (link).

Are there other resources you recommend reading?


Sample Application:
  • Pages 1-2 — Filing fees
  • Pages 3-4 — Letter with table of contents
  • Page 5-8 — G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative)
  • Page 9-14 — I-907 (Request for Premium Processing Service)
  • Page 15-24 — I-140 (Immigrant Petition for Alien Workers)
  • Page 25-26 — Previous EB-2 approvals for Google and Glean
  • Page 27-40 — Passport, I-94, visas, previous I-797s
  • Page 41-85 — Meat of the petition: written out text argument for why I fit the criteria I applied for pointing to 28 “Exhibits” or pieces of evidence, and citations to the reference letters. I applied for 8 criteria
    • Leading / Critical Role
    • Original Contributions
    • Membership in Associations
    • Judging
    • Scholarly Articles
    • Published Material
    • Awards
    • High Salary
  • Page 86-926 — 28 Exhibits:
    • Academic credentials
    • Information about my startup, Glean
    • Letter 1
    • Letter 2
    • Letter 3
    • Documentation around critical role at Google
    • Letter 4
    • Letter 5
    • Patents
    • Customer contracts for Glean, to prove wide use of patents
    • Conferences, panel discussions, guest lectures
    • Membership in associations
    • Judging references
    • Scholarly articles that have been published in journals
    • Google Scholar screenshot
    • Listing from SCImago Journal & Country Rank, confirming research is in renowned journals
    • Published material in professional trade publications
    • Appearance in podcasts
    • Award documentation
    • Startup name change documentation
    • Equity info
    • Startup valuation documentation
    • Salary info
    • Salary statistics from BLS
    • USCIS Policy Manual section confirming equity can be used in lieu of cash compensation
    • Independent media, organizational justifications, statistical data, and scholarly articles supporting that equity commands accepted negotiable value in the field.
    • Report from the National Science and Technology Council’s (NSCT) Fast Track Action Subcommittee on Critical and Emerging Technologies (CET) confirming that Artificial intelligence and Advanced Computing are areas of critical national importance.
    • National Science and Technology Council’s (NSCT) Fast Track Action Subcommittee February 2022 update of the list of critical and emerging technologies to inform forthcoming strategy on U.S. technological competitiveness and national security.


References:
https://debarghyadas.com/writes/eb1-ultimate-guide/
https://debarghyadas.com/writes/eb1-story/
https://debarghyadas.com/writes/eb1-why/
https://asadmemon.com/blog/eb1/
https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1
https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2
https://writing.nikunjk.com/p/permanent-residency
https://razvanmarinescu.github.io/green-card-I-140/
https://andreychemist.github.io/assets/EB1A.pdf
https://zhayitong.com/2021/10/30/fast-greencard.html
https://nintil.com/us-immigration

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