"The alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation;
the alien seeks to enter the United States to continue work in the area of extraordinary ability;
and the alien's entry into the United States will substantially benefit prospectively the United States."

The Extraordinary Ability Alien category is a first-preference immigration vehicle for the brightest and best in their chosen field of endeavor. The particular advantages of this category are that it does not require a U.S. sponsor and that it bypasses the cumbersome Labor Certification procedure. Therefore, this category is especially attractive to those scientists and researchers who work for the employers that have a policy of not acting as an interested sponsor for their employees' immigration matters and to those who do not wish to be tied to a specific employer for a lengthy time.

Meaning of Extraordinary Ability

First, the list of recognized fields includes "sciences, arts, education, business, and athletics'' but notably omits professionals. Although it is disputable that the lawmakers intended to exclude professionals and other omitted areas, the BCIS has taken the position that the practice of a profession is not one of the fields included within the extraordinary ability category.

Second, the term "extraordinary ability'' is defined as "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''. The law specifies initial evidence which must be submitted to establish that the alien "has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." Such evidence must include evidence of a one-time achievement (i.e. a major internationally recognized award) or at least three of the following:

a. documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
b. documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
c. published material about the alien in professional or other major trade publications or major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
d. evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
e. evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
f. evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
g. evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
h. evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
i. evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
j. evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

If the above does not readily apply to the beneficiary's occupation, the law allows the petitioner to submit comparable evidence to establish the beneficiary's eligibility. However, without evidence of such a one-time achievement or three criteria demonstrating sustained acclaim, it will be harder to meet the extraordinary standards. Also, even after technically meeting the initial evidence requirement, the overall evidence must establish that the alien is one of that small percentage who have risen to the very top of the field of endeavor to be found to be an alien of extraordinary ability.

Requirement of Intention to Continue Work in the Field

Aliens of extraordinary ability do not need an employer or other sponsor. However, they must be coming to the United States "to continue work in the area of expertise.'' Generally, this requirement can be satisfied by the plans that the alien will continue to work in their field of expertise. Please note that although there is no requirement that they have a standing job offer or pursue the very specific and specialized areas of the field that brought them sustained acclaim, they should be able to at least present their plans to continue their work, and such work will be in their field.

Requirement of Substantially Benefiting Prospectively the United States

Finally, the aliens must show that their future work will likely benefit the United States. It would be safe to say that these aliens of extraordinary ability will substantially benefit the interests of the United States in some way by simply working in their expert area. Although the BCIS regulations do not specifically require evidence on this issue, it should be explained how the aliens' endeavor will substantially benefit the country.

In summary, as a first-preference class, the extraordinary ability alien category requires the alien to meet very stringent standards. Also, because the wording is so general, the definition of "extraordinary" can be interpreted rather subjectively depending on the general political or economic climate of the time. Due to the extensive amount of evidence and the changing standard, it is advisable for those who wish to use this category to consult an experienced immigration attorney on their qualifications.