Attention All Immigrant Scientists, Inventors, and Entrepreneurs
By Christy Turovskiy, Esq.
As discussed further in our website, www.myeb1visa.com, the self-sponsored EB-1A route is an excellent accelerated green card option for those individuals of extraordinary ability in their field. This option is for those who are at the top of their field and therefore the standards are quite lofty. With that said, every now and then some very good case law comes around that can help make the path – even a path as rigorous as the one for EB-1A – just a bit easier. That is exactly what has now happened with the case of Zizi v. Cuccinelli, 20-cv-07856-SVK.
To provide context, the beneficiary in the underlying EB-1A case had a decades-long career in the field of biophysics. This individual had at least 13 patents, some of which formed the basis of FDA-approved medical devices, and others that form the technology basis of his current company. His filing also included at least 68 scholarly articles with over 2,000 citations, articles in professional publications specifically about him and his patented technology, evidence about him as the CEO of his company and of the company’s reputation, and evidence of major venture capital (VC) funding with letters stating the funding was because of him and his track record.
Basically, as far as we are concerned, this was a dream client when it comes to EB-1A cases. This should have been a slam dunk winner. And we don’t say that often.
Absurdly and in a gross abuse of power, USCIS concluded that this clearly extraordinary scientific leader had met none of the criteria.
Fortunately, the beneficiary did not give up. He first pursued an appeal to the AAO in 2019. The AAO (unsurprisingly) rubberstamped the decision by USCIS and dismissed the appeal. Following this denial, the beneficiary-plaintiff filed a federal lawsuit. The beneficiary rightly contended that the AAO’s decision was arbitrary, capricious, and an abuse of discretion. The beneficiary-plaintiff also contended that he presented evidence on six criteria as well as comparable evidence. In a historic decision, the Court addressed each category upon which the beneficiary relied and in doing so, provided ample insight into these EB-1A categories.
Other practitioners can (and should) now use this decision and its analysis to support other EB-1A filings for their clients. This is particularly relevant for immigrant scientists, inventors, and entrepreneurs who may benefit the most from this detailed and powerful federal court decision.
Ultimately, the Court found that the beneficiary met four criteria: original contributions, scholarly articles, published material about the foreign national, and lesser awards.
Two major highlights from this case include (but are not limited to) the following:
- The Court provided significantly helpful language to use regarding the criterion related to published material about the foreign national in professional or major trade publications. The Judge found that articles that discuss the foreign national’s technology more than his biography further enhanced the argument that these are publications about the beneficiary and his work and thus met the criterion. This has been a common area of contention with EB-1A cases where USCIS has pushed back against publications that are about the foreign national’s work but not about the foreign national directly. For those individuals who had their cases challenged or denied on this basis, it may be an excellent time now to revisit a re-filing using the arguments made in this case as this may open the door to a much needed turning point in how USCIS interprets this criterion.
- This decision also confirms that VC funding can be used as “lesser awards.” In the underlying filing, counsel included the USCIS website screenshot from the Entrepreneurs in Residence program (which is no longer on the USCIS website but is archived) identifying VC funding as something that can be used as a “lesser award.” The Judge noted, “[t]he Government does not dispute that venture capital funding can satisfy the lesser prizes or awards criteria.” The argument turned on what was meant by “you” on the USCIS website that said venture capital funding awarded to “you” can be used. The Assistant U.S. Attorney (AUSA) argued that VC funding cannot be used for this criterion unless it goes to the person as an individual – the “you.” The Judge agreed that VC funding does not go to individuals as individuals. It goes to companies, based on the individuals running the company. Since the VC letter had stated that the funding was based on the beneficiary’s technology and his track record, the Court said he met this criterion. Again, if this criterion was a reason why an extraordinary individual held back from filing an EB-1A case or received a challenge or denial, now may be the time to reconsider current options and likelihood of success.
As stated above, we believe this can open the door to a new turning point for many EB-1A cases. We believe this decision is particularly impactful and useful for immigrant scientists, inventors, and entrepreneurs. We are excited about this major victory and we look forward to using it to the benefit of our clients.
If you have any questions about how to navigate the EB-1A green card process given the recent decision in Zizi v. Cuccinelli, please contact your HNM attorney. Please also see more information at https://www.myeb1visa.com.
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