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Do you qualify for the 'Melania Trump Immigrant Visa'?

There have been much discussion in the media recently about FLOTUS Melania Trump and how she obtained her lawful permament residence status in the U.S.  Here, we provide better perspective on what the "Melania Trump Immigrant Visa" entails. Essentially, it is a type of employment visa or business immigration visa. 

There are several preference categories of immigration visas based on employment. They are ordered by preference of talents desirable for the U.S. workforce. As such, the priority of assignment of visas, and the number of visa allotment per fiscal year, are in accordance with these preferences.

The first of these is the "Priorty Workers" or "EB-1" ("EB" stands for Employment-Based) category.  It is one of several types of business immigration or employment immigration (as opposed to family immigration).  Under the EB-1 Priority Worker Preference Category, there are three sub-groups of workers who split the annual visa limit. We will discuss the subgroups and requirements in a series.  We will discuss the first of these, "EB-1A," or often called, "Extraordinary Ability" in this blog. The others, Outstanding Researchers and Professors (EB-1B) and Multi-National Managers and Executives (EB-1C) will be discussed in the upcoming weeks.

The EB-1A had always been referred to by the immigration legal community as the "extraordinary ability" immigration visa.  Recently, the media began referring to these visas as the "Einstein Visa," implying they are for scientists, but this visa is not limited to just scientists. In fact, the media began talking about the EB-1A Extraordinary Ability visa in their discussions about how FLOTUS Melania Trump received her lawful permament resident -- that she had qualified under this category as an extraodinary model. 

In this week's post, we discuss how one may qualify for the EB-1A Extraordinary Ability Visa, aka "Melania Trump Visa." 

EB-1 (a) Extraordinary ability: You must demonstrate recognized achievements in the arts, sciences, education, athletics or business, along with sustained national or international acclaim. You must submit evidence that you meet three of the criteria below. No employment offer is required.

  • Receiving nationally or internationally recognized awards or prizes
  • Membership in associations requiring outstanding achievement by members
  • Material published about you in major media, trade or professional publications
  • Participation, either individually or on a panel, in judging others' work
  • Producing original work of major significance to your field
  • Authoring scholarly articles in major media, trade or professional publications
  • Appearance of your work in artistic exhibitions or showcases
  • Performing a leading or critical role in distinguished organizations
  • Commanding high earnings compared to others in the field
  • A record of commercial success in the performing arts

But wait, there's more.  In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the Administrative Appeals Office's (AAO) dismissal of a petitioner's appeal of a denial of a petition filed under EB-1A (section 203(b)(1)(A) of the Immigration and Nationality Act). Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010) ("Kazarian.")  The Kazarian court required a two-part adjudicative approach to evaluating evidence submitted in connection with petitions for aliens of extraordinary ability: (1) Determine whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for each type of evidence listed at 8 CFR 204.5(h)(3), the minimum 3 out of the 10 criteria listed above; and (2) Determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the extraordinary ability immigrant classification during a final merits determination. 

While the requirements for the EB-1A category are difficult to meet, there are a few attractions, one of which is that the intending immigrant may "self-petition," which means he/she does not need a job offer or that the petition be sponsored by an employer. Another advantage is that there is no advance educational degree requirements, unlike some of the other employment-based immigrantion categories.  As such, for example, someone like Steve Jobs with no college degree could qualify while he may not qualify for the lower preference categories such as EB-2, which is for professionals with an advance educational degree. 

Nevertheless, at our office, we do meet individuals from time to time who self-filed and disappointedly received a denial because they did not conduct the additional analysis under the Kazarian standard for a final merits determination. They thought all they had to do was to satisfy the 3 out of the 10 requirements as above-listed.  

If you believe you meet the requirements of the EB-1A extraordinary ability, aka the "Melania Trump visa," we strongly recommend that you contact Alison Yew to discuss what additional evidence you may need.  Alison Yew has has years of experience in obtaining this visa type for those who have made it to the top of their field, be in the sciences, arts, business, education, or sports/athetics. We are here to help.  

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