EB-1A Pro Tip: How to Evidence the Critical or Leading Role Criterion

In order to be eligible for classification as an EB-1A, a foreign national must establish that they possess a level of expertise in the sciences, arts, education, business or athletics, indicating that they are one of that small percentage who has risen to the very top of the field of endeavor.

This requires submission of evidence that they have sustained national or international acclaim and that their achievements have been recognized in the field of expertise. Such evidence includes a major, internationally recognized award, or at least three out of ten criteria. See 8 CFR 204.5(h)(3)

Today, we’re going to focus on one specific criterion: Evidence that the foreign national has performed in a leading or critical role for organizations or establishments that have a distinguished reputation [8 CFR 204.5(h)(3)(viii)]. I my humble opinion, it is essential to read USCIS’s Policy Manual on EB-1A petitions, wherein the Agency explains how to satisfy the different criterion and provides examples of the types of evidence that it wants to receive.

This is a great criterion that many EB-1A candidates can meet, but is often challenged by USCIS because of mistakes made in the presentation of evidence. These mistakes include: (1) using the “leading role” and “critical role” terminology interchangeably as if they are the same thing; and (2) failing to establish that an organization or establishment has a distinguished reputation.

In order to successfully present evidence in this criterion, you must establish that: (1) the foreign national has served in a “leading role” or a “critical role”, usually through a testimonial letter from a direct supervisor; and (2) with an organization or establishment (a current or former employer) that has a distinguished reputation, usually with media reports.

First, “leading role” and “critical role” are different.

To establish that a foreign national has served in a “leading role”, USCIS will look at their title and job duties within the organization as a whole and within their specific department. In addition to a testimonial letter that clearly describes the foreign national’s leadership role, you would need to provide an organizational chart reflecting the hierarchy of their position within their department and organization.

To establish that a foreign national has served in a “critical role”, USCIS will look how they have “contributed in a way that is of significant importance to the outcome of the organization or establishment's activities”. It is the foreign national’s contributions, not title or job duties, that are of paramount importance to establishing “critical role”.

Second, you must provide evidence that the organization or establishment (current or former employer) has a distinguished reputation.

This requires printed media such as articles and reports published about the employer and their products; product reviews showing that the employer’s products have received acclaim or are recognized as outstanding in the field; annual reports or media reports showing that the employer is recognized as leader in their field and/or that their products/services (in particular the ones that the foreign national has worked on) have generated significant revenues for the employer; and awards/honors that the employer has received, especially if those relate back to the foreign national’s work.

As the EB-1A is a complex preference category that requires significant documentation and legal argumentation, it is critical to work with a licensed business immigration attorney, who is knowledgeable about and experienced in preparing and filing EB-1A petitions.