EB-1A Kazarian Analysis: Claiming the “Lead or Critical Role” Criterion

 

“Lead or Critical Role” criterion [8 CFR 204.5 (h)(3)(viii)]:  

“Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.”

As a foreign national wishing to claim the “Lead or Critical Role” criterion, there are several items to consider before compiling evidence in the objective of satisfying this criterion.  Throughout our extensive legal experience and specialized background in U.S. immigration policy analysis, we at Chen Immigration Law Associates have come to view this particular criterion as one of the most complex and inflexible criteria, requiring specific and lengthy evidence in the two-fold and stringent analysis imposed on evidence provided under this criterion.  The relative misinterpretation and perplexity of legalese and plain language surrounding this criterion has led many of our RFE clients to incorrectly claim this criterion in the process of their original filings (both in self-filing cases and cases filed by other attorneys); or conversely, this criterion has led to our leveraging of this criterion for RFE clients or original clients by correctly submitting the necessary qualifying evidence to fulfill this criterion.

Nevertheless, we would like to begin by clearing several misnomers in regards to the plain language requirements of this criterion.  First and foremost, many people (attorneys, clients, and officials alike) do not understand that this criterion only requires one to have played a lead or critical role for distinguished organizations, rather than proving that the petitioner and/or beneficiary played both a lead and critical role for the respective organizations.  This is a common misconception, and can lead one to submit irrelevant and/or non-qualifying evidence in the pursuit to fulfill this criterion.  A discussion distinguishing the two terms will be provided later in the article, but this realization alone can ameliorate difficulties and solve many conceptual problems for petitioners/beneficiaries across all realms of professional endeavors.  Secondly, and in accordance with our experience, the vast majority of individuals believe that one must have been employed directly with the organizations in which they have performed in a lead or critical capacity.  In actuality, this is not true at all, and we have provided a specific case study below as an example of how an independent consultant (not employed by the organizations in question) performed in a critical capacity for several distinguished organizations, thus leading to the fulfillment of this criterion.  Lastly, and albeit pertinent to most of the ten regulatory criterion included in the first part of Kazariananalysis, many individuals do not realize that based on the plurality (i.e. at least two) imposed within the plain language of this criterion (i.e. “organizations or establishments”), the evidence submitted by the petitioner and/or beneficiary must include performances in lead or critical roles for multiple organizations or establishments with a distinguished reputation.  Failure to realize this plurality element of the respective plain language may lead to the immediate denial or request for evidence in cases where this evidence is either not submitted or not available.  Moreover, there are effectively two guidelines under this criterion that, if followed in compliance, will lead to a favorable decision and satisfaction of this criterion.  They are itemized below and interpreted in a manner which will provide an overview and analysis of the standard of law imposed herein, thereby supplying one with the optimal means of evaluating whether they are able to provide qualifying evidence to fulfill the criterion.

1. Determining whether the organizations or establishments where the petitioner/beneficiary performed in a lead or critical capacity enjoy a distinguished reputation.

According to the USCIS-   In other words, the organizations or establishments used as evidence under this criterion should have some defined and objective marks of distinction in order to qualify under this criterion.  For example, the organization or establishment may be ranked in some prestigious list (e.g. US News & World Report’s Best Business Schools rankings - http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-business-schools/mba-rankings), received recognized awards for their products or services, made visible contributions to the international/national field within the respective realm of professional influence, or have evidence of large revenues based on their products or services.

Therefore, it may be helpful to evaluate these organizations or establishments similar to how the USCIS evaluates petitioners or beneficiaries in EB-1 proceedings through criteria-based analysis.  For instance, if the organizations or establishments have similar evidence of nationally-acclaimed awards, major media coverage, and original contributions of major significance (i.e. patents, licenses, inventions, trademarks, etc.), among other evidence required by the EB-1 regulatory criteria, the organizations or establishments would qualify as ones with distinguished reputations.  Specific examples of organizations/establishments that have qualified in the past include but are certainly not limited to- Harvard Medical School (of Harvard University), IBM, Universal Music Group, Merck, Colgate-Palmolive, Ericsson, McCain Foods, Capcom, and the International Organization for Standardization (ISO).  Nevertheless, the inescapable notoriety of these organizations and establishments through their achievements in their respective fields coupled with their large revenues and/or scope of influences, invariably qualify these and other organizations/establishments of similar repute, as qualifying organizations/establishments that enjoy a distinguished reputation.

Finally, one may note that the majority of the organizations/establishments specifically mentioned above are known by name alone internationally.  While this is not a bar to eligibility, it is generally accepted that with the less namesake recognition an organization/establishment holds, comes the expectation of more evidence in regards to objective and defined reputation of the distinction accompanying the organization or establishment in question.

2. Determining whether the petitioner/beneficiary performed in a lead or critical role for the respective organizations or establishments with a distinguished reputation.

After, and only after, determining that the organizations or establishments in question enjoy a distinguished reputation, it is valuable to weigh the lead or critical nature of one’s role in these particular organizations or establishments.

According to the USCIS-

  The most important takeaway from the preceding statements is the purported inquisition of whether or not the petitioner or beneficiary’s role was leading or critical to the organization as a whole.  While this statement may appear relatively ambiguous, it is intentionally vague in order to permit a wide array of claims to the matter in terms of providing evidence of one’s impact on the organization at-large, rather than one department, division, or sub-committee.  In order to distinguish this statement with the objective of providing optimal interpretation herewith, we have separated the discussions of lead and critical into two sections below, also abiding by and stimulating the realization of satisfying either the lead or critical role requirements imposed under this criterion.   Demonstrating one’s lead role for an organization or establishment requires one to prove both leadership and directing capacities in the performance of employment-based duties, whether in contractor or permanent employment settings.  In other words, the USCIS has suggested and directly implied that this situation requires one to show evidence of their service in a Director or Executive-level position for large organizations.  Therefore, one’s service as a senior manager may not qualify as lead, simply because there are many more ‘leaders’ and/or ‘directors’ above them, whom are expected to perform in a much higher lead role.  On the other hand, if one is an independent contractor who advises said leaders at the Director or Executive-level, one’s performance may qualify as lead and perhaps even critical as well.  Specifically, and aligned with the overarching context of documenting one’s rise to the top of the field of endeavor, one must prove that their ‘lead role’ is one that leads/directs the company at-large, or at minimum, leads/directs a department, division, or sub-committee within the organization/establishment, in such a manner that the role/position stands to impact the organization as a whole due to the intrinsic importance of the sub-entity to the organization at-large.  For example, it is commonly accepted that one’s position as the Vice President or Director of Engineering, whether regionally or internationally, would stand to impact the organization as a whole by way of leading/impacting the institutional directives as they pertain to engineering.  Extending this line of logic to all divisions of an organization/establishment, the failure of any department, sub-committee, or division, would certainly stand to detrimentally impact an organization as a whole if it were not led/directed.   Furthermore, as opposed to the seemingly clear-cut implications of demonstrating one’s lead role for an organization/establishment, proving one’s critical role for an organization/establishment becomes even more complex and stringent.  Without a title or position clearly defining and/or documenting one’s importance to the organization/establishment as a whole, one must provide evidence to demonstrating that their contributions to the organization/establishment has substantially impacted the organization at-large via cultural, educational, economical, or reputational advances.  Though the ambiguity presented by these requirements is apparent, this non-specificity may in fact allow many more individuals to claim such criticality or vitality to their respective organizations/establishments.  In other words, the possibilities of claims to contributions impacting the organization/establishment as a whole are effectually endless.  For example, one could claim anything from developing the curriculum used in a department within an institution which serves to educationally-benefit an institution as a whole to acquiring a patent for a process or product which serves to financially-benefit a privately-held manufacturer.  Nonetheless, the most important element in evaluating and measuring one’s critical role is the degree of influence derived from the respective contribution(s) provided by the individual to the organization as whole.  If one contributes to the organization in a manner which is merely expected or conducive to routine job responsibilities, such as implementing/advancing an internal process or procedure, the role may not be viewed as critical by the USCIS, unless there exists some overwhelming evidence of the processes’ important financial implications (i.e. process implementations that saved the business millions of dollars or a large fiscal figure relative to the overall expenditures of the organization).  Likewise, if one is a research and development engineer, and they develop a patented technology for the organization/establishment, the role may or may not be deemed as ‘critical’ depending on the relative measurement of financial/cultural impact derived from contribution.

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Case Study:  Independent Contractor – Critical Role for Distinguished Organizations

One of our past approved cases filed by Chen Immigration Law Associates involved an independent SAP contractor who specialized in SRM (supplier relations management) modules of SAP software.  The organizations in this case – as is the case for many independent contractors based on the nature of independent consulting – were clearly recognized as distinguished organizations, and were comprised of international technology, food, and non-durable manufacturing conglomerates.  Therein, the basis of the evaluation and argumentative claims originated within the secondary determinations of whether or not the petitioner/beneficiary performed in a lead or critical role for the respective organizations.  Since the petitioner/beneficiary was an independent consultant, we decided it was best to claim that they performed in a critical role for the distinguished organizations.  We based these claims on evidence that the contractor adapted SAP software for the organizations to substantially advance their supplier relations and supply chain processes, which resulted in significant fiscal savings through improved software applications that would not only allow for increased monitoring and documentation of supply chain systems, but would also expedite payments and shipments to and from their suppliers and customers and vice versa.  By specifically delineating the business process improvements provided by the contractor’s contributions, we were able to show the overall impact they had on the organizations at-large, thereby leading to the swift approval of this criterion and the petition as a whole for the client.

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At Chen Immigration Law Associates, we recognize that understanding breeds confidence, and that confidence in turn leads to favorable action, which invariably results in favorable consequence.  This is not to say that the information contained within this article is infallible, but rather suggests that with this additional knowledge, individuals in all pursuits and motives will be better suited to qualifying evidence leading to a more favorable adjudication of their immigration proceeding.  Thus, before attempting to claim this criterion, like any other criterion, one must consider the comprehensive and detailed standards of law.  Consulting an attorney will aid one’s understanding of whether or not they, in totality and actuality, meet this criterion.  All cases are different, and the USCIS has set up each criterion for the flexible interpretation of all parties.  Therefore, while it is always illogical to completely disregard evidence, proper consideration and consultation is the optimal means of determining which criterions to argue in the petition package.

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