A Little about that “Einstein” Visa

AILA Law Journal author Sasha Kaskel shares some insights in this blog post, part of our series devoted to the latest edition of the AILA Law Journal. AILA members can access their free digital copy here.

Most readers will know that U.S. Citizenship and Immigration Services (USCIS) is a government agency inside the Department of Homeland Security (DHS). USCIS’s role is to receive, review, and adjudicate visa petitions allowing temporary stay in the U.S. and green card applications for permanent residence. Under the employment-based green card process, foreign nationals may be eligible for permanent residence based on a job offer and those who hold specialized skills, have earned acclaimed achievements, or are distinguished in their field of expertise.

Nicknamed the “Einstein Visa,” foreign nationals deemed to hold “extraordinary talent” may apply for permanent residence by filing the proper immigration forms with USCIS. High-profile figures who reportedly obtained permanent residency through this EB-1A Immigrant Visa process include former first lady and fashion model, Melania Trump. Extraordinary talent is shown by satisfying at least 3 out of a possible 10 criteria that include achievements such as having won recognized awards, been featured in major media, and having received a high salary.

The criteria demonstrating extraordinary talent remains subjective, and USCIS decision-makers may vary (even drastically) in their conclusions that a foreign national’s achievements are sufficient. Where USCIS denies an EB-1A petition, this decision may be appealed, which asks for review by the AAO (Administrative Appeals Office), an office within USCIS. The AAO may dismiss the appeal by uphold USCIS’ denial or sustain the appeal by overturning the denial and approving the EB-1A petition. After reaching a conclusion, the AAO issues a decision, which summarizes the reasoning in reaching its judgment. While USCIS is not required to follow AAO decisions unless designated as precedent, these decisions can provide valuable insight on the evaluation process used in deciding foreign nationals’ eligibility.

In other words, while USCIS has discretion to disagree with AAO decisions, these decisions generally reflect reasoning that agency authorities have accepted in the past. Since each foreign national in this employment-based immigration process has earned unique achievements, immigration attorneys may perceive a wide latitude in forming arguments that clients’ work satisfies the criteria showing extraordinary talent. Immigration attorneys may wish to objectively examine potential strategies to distinguish innovation from frivolity. Undoubtedly, the line differentiating cutting-edge reasoning from far-fetched arguments remains subjective. Nonetheless, attorneys exploring increasingly imaginative ideas may seek to draw inspiration from tried-and-true approaches to demonstrate the EB-1A criteria.

To read more about the Einstein visa, take a look at Sasha’s article in the Fall 2021 edition of the AILA Law Journal. AILA members can access their free digital copy here.

Also, the editorial board of the AILA Law Journal is seeking submissions for the spring 2022 edition of the Journal. This special edition will support the theme of AILA’s 75th Anniversary and will include a more diverse variety of materials than the typical edition. In addition to scholarly articles, we welcome historical pieces, tributes to former and current AILA leaders and attorneys, poems, photographs, and more. Read the submission guidelines and send your article or other materials for consideration by the deadline on December 1, 2021.

by Sasha Kaskel