Proving Extraordinary Ability
The regulations offer three basic approaches to showing extraordinary ability.
First, petitioners can prove extraordinary ability by showing a one-time achievement, meaning the alien’s nomination for or receipt of a “significant national or international” award or prize in the particular field, such as an Academy, Emmy, Grammy, or Director’s Guild award.
Second, petitioners can qualify aliens lacking such a rare one-time achievement by documenting that the beneficiary meets at least three of the following suggested criteria:
- Performed/will perform as lead/starring participant in productions/events with distinguished reputations, shown by critical reviews, ads, PR releases, publications, contracts, endorsements;
- National/international recognition for achievements through critical reviews, other published materials by or about the alien in major papers, trade journals, etc.;
- Performed/will perform in lead/starring/critical role for organizations that have distinguished reputations, shown by media articles, testimonials, etc.;
- Record of major commercial/critically acclaimed success;
- Achieved significant recognition from organizations, critics, government agencies, recognized experts;
- Commanded/will command high salary/other remuneration relative to others in field.
The menu-driven approach is fine for those aliens squarely meeting the criteria; otherwise, though, the disadvantage of this approach is that it can tempt overburdened USCIS examiners to rely too heavily on canned criteria and, frankly, make it too easy for them to deny a petition for inappropriate reasons. Moreover, merely meeting three of the criteria may be insufficient, for USCIS reserves the right to step back from the petition and review it from a broader perspective.
Third, as a supplement or alternative to the menu-driven approach, the "comparable evidence" approach enables petitioners to supply other types of evidence for cases in which the suggested criteria don't quite fit. For the most part, "comparable evidence" means letters from experts in the same or an allied field of endeavor. There is no magic number of letters required, but for O-1B petitions otherwise thinly documented, consider at least five. The letters must set forth in detail the credentials of the author (an attached résumé or bio will do), establish how the author knows the beneficiary (by personal relationship or reputation), and give an opinion that addresses the standards set forth above. Experts can be academics, performers, diplomats, other governmental representatives or peers - from here or abroad - just about anyone whose credentials USCIS is likely to accept. USCIS recognizes the national arts service organizations as qualified peer groups for the purpose of providing non-labor pre-petition consultation letters.