White Paper · Employment Immigration

EB-1A Extraordinary Ability: The Ten Criteria, Kazarian’s Two Steps, and the Final Merits Question

Meeting three criteria is only the first step. How the evidence is evaluated and what decides the second.

By Lincoln Square Law · 10-minute read

The first employment-based preference for persons of extraordinary ability, known as EB-1A, is the most demanding route to a green card through work, and in some ways the most flexible. There is no employer, no labor certification, and no job offer. The petitioner files Form I-140 on his or her own behalf and must show that he or she has reached the very top of the field. The standard is high, but it is defined, and most denials come from petitions that misunderstand how the evidence is evaluated rather than from petitioners who lack accomplishments. This paper explains the statute and regulation, the two-step review that courts and USCIS apply, how the Policy Manual reads each criterion, and the questions that decide whether a record is ready.

The statutory standard

The statute reserves the classification for a person with extraordinary ability in the sciences, arts, education, business, or athletics that has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation (INA 203(b)(1)(A)(i)). The person must be coming to the United States to continue work in the area of extraordinary ability, and the entry must substantially benefit the United States prospectively (INA 203(b)(1)(A)(ii), (iii)).

The regulation defines extraordinary ability as a level of expertise indicating that the person is one of that small percentage who have risen to the very top of the field of endeavor (8 C.F.R. 204.5(h)(2)). Neither an offer of employment nor a labor certification is required, but the petition must include clear evidence that the person is coming to continue work in the area of expertise (8 C.F.R. 204.5(h)(5)). That evidence usually takes the form of letters from prospective employers, contracts, or a detailed statement of plans. The prospective benefit requirement is usually met by the same record. In Matter of Price, 20 I&N Dec. 953 (AAU 1994), a professional golfer with major tournament victories and a high ranking in earnings qualified, and the decision found that the entry of a player of his ability would substantially benefit the United States given the sport’s popularity here.

The evidence the regulation requires

The regulation offers two ways to meet the initial evidentiary requirement. The first is evidence of a one-time achievement, meaning a major, internationally recognized award. The second is evidence meeting at least three of ten criteria (8 C.F.R. 204.5(h)(3)). In summary, they are:

• Awards. Nationally or internationally recognized prizes or awards for excellence in the field.
• Membership. Membership in associations that require outstanding achievements of their members, as judged by recognized national or international experts.
• Published material. Published material about the person in professional or major trade publications or other major media, relating to the person’s work.
• Judging. Participation as a judge of the work of others in the same or an allied field.
• Original contributions. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.
• Scholarly articles. Authorship of scholarly articles in professional journals or other major media.
• Display. Display of the person’s work at artistic exhibitions or showcases.
• Leading or critical role. Performance in a leading or critical role for organizations or establishments with a distinguished reputation.
• High remuneration. A high salary or other significantly high remuneration in relation to others in the field.
• Commercial success. Commercial success in the performing arts, shown by box office receipts or sales.

If a criterion does not readily apply to the person’s occupation, the petitioner may submit comparable evidence (8 C.F.R. 204.5(h)(4)). The Policy Manual gives examples, such as presentations at industry events in place of scholarly articles, or equity in a company in place of salary, where the field compensates that way. Comparable evidence is not a way to substitute weaker evidence for a criterion that does apply. The petitioner must first explain why the criterion does not fit the occupation.

Kazarian and the two-step review

Before 2010, adjudicators often weighed the ultimate question inside each criterion, finding for example that published articles did not count unless the field had reacted to them. In Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), the Ninth Circuit held that the agency had imposed novel substantive or evidentiary requirements beyond those in the regulation. The court described the proper procedure as counting the types of evidence first and then considering all of it in the context of a final merits determination. The earlier panel opinion in the same case, Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009), shows what the final step looks like in practice. The petitioner’s letters were described as vague, solicited letters from local colleagues, and his published work did not show major significance.

USCIS adopted the two-step framework in its Policy Manual. At the first step, the officer decides objectively whether the evidence meets at least three criteria. At the second, the officer considers the petition in its entirety to decide whether the person is one of the small percentage at the very top of the field and has sustained national or international acclaim. The Manual states plainly that meeting the criteria at the first step does not by itself establish eligibility.

The Fifth Circuit endorsed the same structure in Amin v. Mayorkas, 24 F.4th 383 (5th Cir. 2022), holding that meeting three criteria does not presumptively qualify a petitioner and that the regulation’s reference to initial evidence contemplates a further step. The court reviewed the denial deferentially, noting that recognizing extraordinary ability necessarily entails a judgment call. The standard of proof throughout is a preponderance of the evidence (Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)).

In January 2026, a federal district court in Nebraska decided Mukherji v. Miller, No. 4:24-cv-03170 (D. Neb. Jan. 28, 2026), which questioned whether USCIS had lawfully adopted the final merits step. That decision addressed one petitioner’s case. It does not bind USCIS elsewhere, and the two-step framework remains in the Policy Manual and in circuit precedent. A petition filed today should be built to succeed at both steps.

How the Policy Manual reads the criteria

The Policy Manual answers several recurring questions:

• Team awards can qualify when each member receives a trophy, certificate, or medal, appears on the podium or stage, or is named in the awarding organization’s announcement.
• Past membership or awards can satisfy the plain language of a criterion, but if the petition contains no recent evidence, the time that has passed may weigh against sustained acclaim.
• Published material that covers a broader topic can count if it discusses the person’s work substantially and names the person in connection with it.
• Judging requires proof that the person actually judged, not only that he or she was invited.
• Original contributions are not established merely because work was funded, patented, or published. The record must show the contribution’s significance to the field, for example through its use by others or its commercial impact.
• High remuneration may be shown through geographic or position-specific compensation surveys and explanations of why the person is paid above the data.

The final merits question

Everything in the record should be assembled with the second step in mind. The officer is asking whether the evidence, viewed together, shows that the person’s acclaim is national or international, that it has been sustained, and that the person stands among the small percentage at the top of the field. Context supplies most of the answer. An award matters because of who competes for it and how few receive it. A citation count matters in relation to the field’s norms. A leading role matters because of the organization’s reputation and what the person’s work changed there.

Acclaim must also be sustained. The Policy Manual explains that acclaim must be maintained, while adding that the word does not imply an age limit. A record built mainly on achievements from years ago, with little recent evidence, invites the conclusion that the acclaim has faded, and the petition should address that directly.

Letters and corroboration

Letters are a normal part of an EB-1A record, but the Policy Manual cautions that they should not form the cornerstone of the claim. Statements in letters should be corroborated by documentary evidence. Letters that repeat the regulatory definitions or praise the person in general terms are generally not persuasive, and the officer may consider the relationship between the writer and the petitioner. Expert opinion that is inconsistent with other evidence or unsupported may receive less weight (Matter of Caron International, 19 I&N Dec. 791 (Comm’r 1988)). The strongest letters come from writers who know the work through its influence and who explain, specifically, what it changed.

The timeline after approval

An approved I-140 gives the petitioner a priority date, and a green card can be issued only when that date is current under the Visa Bulletin. In the State Department’s September 2026 bulletin, EB-1 was current for most countries of chargeability, with cutoff dates for China-mainland born applicants and for India, and the State Department warned that the category for India might become unavailable before the fiscal year ended. Annual limits reset each October. Premium processing, where USCIS offers it for the classification (8 C.F.R. 106.4), speeds the decision on the petition but not the wait for a visa number.

Is the record ready?

Before filing, the petitioner and counsel should be able to answer yes to four questions. Does the evidence meet at least three criteria without relying on generous readings? Does each piece of evidence come with context showing its significance in the field? Is the acclaim current, or is the gap explained? Would the record persuade a reader who had never heard of the petitioner? When the answer to any of these is uncertain, it may be better to build the record for another year, or to consider the EB-2 national interest waiver, whose standard is different, rather than file a petition that meets the first step and fails the second.