EB-1A Visa

Achieving The EB-1A Visa Despite Unlawful Presence: Rare Exceptions For Extraordinary Ability Immigrants

Introduction

The EB-1A visa is one of the most sought-after visas for foreign nationals with extraordinary abilities in fields such as science, arts, education, business, or athletics. Known for its strict qualifications, the EB-1A allows individuals who can demonstrate a high level of achievement in their field to bypass traditional employment-based immigration requirements, including employer sponsorship. However, for individuals who have accrued unlawful presence in the United States, obtaining an EB-1A can be particularly challenging due to legal barriers associated with immigration violations.

In this article, we’ll explore the requirements for the EB-1A visa, the concept of unlawful presence in U.S. immigration law, and the limited situations in which an individual may overcome the unlawful presence barrier when applying for an EB-1A. Drawing insights from Shautsova Law Office, USCIS, AILA, and reliable sources like Immigration Lawyer NY’s Facebook page and YouTube channel, we aim to provide a comprehensive overview for extraordinary ability immigrants facing the challenges of unlawful presence.

Understanding the EB-1A Visa for Extraordinary Ability

The EB-1A visa is an employment-based immigrant visa that grants lawful permanent residency (a green card) to individuals who can demonstrate extraordinary ability in their field. Unlike other employment-based visas, the EB-1A allows individuals to self-petition without the need for employer sponsorship, as long as they can show that their work is of significant merit and that they are at the top of their profession, including business and entrepreneurship.

To qualify for an EB-1A, applicants must provide evidence that they have achieved sustained national or international acclaim, which can include awards, published material, membership in distinguished associations, and evidence of original contributions to their field. Meeting the EB-1A criteria is challenging, as USCIS requires substantial documentation proving that the applicant’s achievements are extraordinary and widely recognized.

What is Unlawful Presence?

Unlawful presence refers to the time a foreign national spends in the United States without valid immigration status, such as overstaying a visa or entering without inspection. Under U.S. immigration law, individuals who accrue significant periods of unlawful presence can face severe penalties, including bars on reentry to the United States:

• 3-Year Bar: Triggered by 180 days to less than one year of unlawful presence, followed by departure from the U.S.
• 10-Year Bar: Triggered by one year or more of unlawful presence, followed by departure from the U.S.

For individuals seeking an EB-1A visa, an existing unlawful presence can create significant obstacles, as these bars generally prevent individuals from reentering the United States or adjusting status from within the U.S. However, in rare cases, there are limited ways to overcome this barrier.

Overcoming Unlawful Presence for an EB-1A Visa

Despite the strict penalties associated with unlawful presence, certain exceptions and waivers may allow individuals to apply for an EB-1A even if they have accrued unlawful presence. These exceptions are rare and typically apply only under specific circumstances:

1. Section 245(i) Eligibility
   • Section 245(i) of the Immigration and Nationality Act (INA) provides a pathway for certain individuals with unlawful presence to adjust status within the United States. This provision allows individuals who were beneficiaries of an immigrant visa petition or labor certification filed on or before April 30, 2001, to adjust their status by paying a fine, despite their unlawful presence. While the original deadline has long passed, those who qualify under Section 245(i) may still pursue an EB-1A and adjust their status in the U.S. without facing the typical bars associated with unlawful presence.
2. Extreme Hardship Waiver (Form I-601)
   • In some cases, individuals with unlawful presence may qualify for an I-601 waiver if they can demonstrate that their inability to enter or remain in the U.S. would cause extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Although this waiver is challenging to obtain, it may apply to individuals with extraordinary ability seeking an EB-1A if they can prove the hardship their family member would face as a result of their absence.
3. TPS Travel
   • If one can qualify for a TPS in the USA, and also for EB1 petition, they may later adjust their status to permanent residency despite the unlawful presence, if they obtain and use TPS related Travel document. The Immigration law allows one who traveled on TPS travel document and returned to adjust status based on employment petition ground despite the previous violations that triggered INA 245 ( C) bars.
4. 245(c) Exception
   • The law actually allows one who overstayed their status and accumulated no more than 180 days of unlawful presence to file for adjustment of status in Employment categories without the need for a waiver. Under INA 245(k):
     
     “Inapplicability of certain provisions for certain employment-based immigrants An alien who is eligible to receive an immigrant visa under paragraph (1), (2), (3), or (5) of section 1153(b) of this title (or, in the case of an alien who is an immigrant described in section 1101(a)(27)(C) of this title, under section 1153(b)(4) of this title) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if- (1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission; (2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days- (A) failed to maintain, continuously, a lawful status; (B) engaged in unauthorized employment; or (C) otherwise violated the terms and conditions of the alien's admission.”
     
     But note: USCIS counts a day during which one engaged in unauthorized employment and was out of status as 2 days!

Strategies for EB-1A Applicants with Unlawful Presence

For EB-1A applicants facing unlawful presence challenges, pursuing legal avenues requires a careful approach. Here are some strategies:

1. Consult with an Experienced Immigration Attorney
   • Navigating unlawful presence barriers is complex, and seeking the guidance of a qualified immigration attorney, such as those at Shautsova Law Office, is essential. An attorney can assess eligibility for waivers, explore options under Section 245(i), 245K, and determine the best course of action based on the applicant’s specific circumstances.
2. Gather Strong Evidence of Extraordinary Ability
   • Applicants must build a robust EB-1A case by providing extensive documentation of their extraordinary abilities and achievements. Demonstrating exceptional qualifications can support arguments that the applicant’s presence in the U.S. is valuable, particularly in cases involving national interest.
3. Seek Family Support for Waivers
   • For applicants pursuing a waiver based on extreme hardship, providing comprehensive documentation of the impact on family members, including medical, financial, and emotional hardships, can strengthen the case. Working closely with family members to collect and present this evidence is critical to supporting a successful waiver application.
4. File Form I-601 or Explore Advance Parole Options Carefully
   • For those eligible, filing Form I-601 (Application for Waiver of Grounds of Inadmissibility) or securing Advance Parole should be done strategically, ideally under the guidance of an attorney familiar with both EB-1A requirements and inadmissibility waivers.

Conclusion: Overcoming Unlawful Presence for an EB-1A is Rare but Possible

While the EB-1A visa is a powerful option for individuals with extraordinary abilities, unlawful presence creates significant obstacles that are challenging to overcome. However, with limited options like Section 245(i), extreme hardship waivers, and TPS travel, individuals may have pathways to achieve lawful residency despite previous immigration violations.

For individuals in these unique situations, consulting with an experienced immigration attorney is essential to maximize the chances of success. By understanding both the qualifications for an EB-1A and the limited options for overcoming unlawful presence, extraordinary ability immigrants can explore paths to achieving their American dreams, even in the face of challenging immigration barriers.