EB-1: First Preference

1. You may be eligible for an employment-based, first-preference visa if you are an alien of extraordinary ability, are an outstanding professor or researcher, or are a certain multinational executive or manager. A “visa” in this context means a green card or lawful permanent residence. Each occupational category has specific requirements that must be met.

Obtaining a U.S. green card under EB1 category is typically easier than doing so in any other employment-based visa categories. The reason is that the employer does not need to start by attempting to recruit U.S. workers for the job and then seeking labor certification (confirmation that no such workers are available) on the employee’s behalf. This process tends to take many months and involve staggering complexity.

In fact, within the subcategory for workers of extraordinary ability (described below), the foreign national does not even need a job offer from a U.S. employer at all.

Extraordinary Ability:

To qualify for this category, you must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. This list is open-ended, and extraordinary ability in all fields are accepted. The person’s achievements must have been publicly recognized and resulted in a period of sustained national or international acclaim. This often involves showing that the foreign national is a widely acknowledged leader in the particular artistic, educational, business, or athletic field.

No job offer is needed in this subcategory, so long as the foreign national will continue working in the field of expertise after arriving in the United States. However, if the worker has received a job offer from a U.S. employer, that will always boost her/his chance of getting the EB1 application approved.

You may qualify for the Extraordinary Ability category in different ways.

First: Provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal). However, there are many fields where there is no one-time achievement like those mentioned above. Therefore, Courts made it flexible if there are no-time achievements in your field. If evidence of one-time achievement does not apply to the alien’s occupation, comparable evidence is accepted. However, the comparable evidence must meet two elements to qualify (1) level of expertise indicating that the individual is one of that small percentage who has risen to the very top of their field of endeavor and (2) that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.

Second: If that petitioner does not submit this evidence of either one-time achievement or comparable evidence, then he or she must provide sufficient qualifying documentation that meets at least three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i) – (x). Those categories are:

(i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(ii) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

(iv) Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;

(v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

(vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

(vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;

(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, about others in the field; or

(x) There is evidence of commercial success in the performing arts, as shown by box office receipts or records, cassette, compact disk, or video sales.

Outstanding professors and researchers

You must demonstrate international recognition for your outstanding achievements in a particular academic field. You must have at least 3 years’ experience in teaching or research in that academic area. You must be entering the United States to pursue tenure or tenure track teaching or a comparable research position at a university, the institution of higher education or private employer.

You must provide an offer of employment from the prospective U.S. employer. The job offer for which the applicant is coming to the U.S. must be a specific tenured or tenure-track teaching or research position at a university or an institution of higher learning. Alternatively, if the position is at a research organization, it must be a permanent position. (Showing permanence can be a bit dicey in cases where the position is based on grant money that will run out in a year – but this can be overcome by showing that the employer intends to seek continued funding and that a reasonable expectation of success exists, such as a track record of renewed funding

Not every type of employer can make use of this visa category. It must be a “qualified employer,” meaning either a university or institution of higher education or a department, division, or institute of a private research entity with at least three full-time researchers on staff. The private U.S. employer will also need to show a history of making significant achievements in research.

No labor certification is required. You must meet at least 2 of the 6 criteria listed (or comparable evidence if any of the criteria do not readily apply) below:

1. Evidence of receipt of major prizes or awards for outstanding achievement

2. Evidence of membership in associations that require their members to demonstrate outstanding achievement

3. Evidence of published material in professional publications written by others about the alien’s work in the academic field

4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field

5. Evidence of original scientific or scholarly research contributions in the field

6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

Certain Multinational manager or executive

You must have been employed outside the United States for at least 1 year in the 3 years preceding the petition or the most recent lawful nonimmigrant admission if you are already working for the U.S. petitioning employer. Alternatively, if the person is already in the U.S. on a temporary visa, it is possible to qualify based on having been employed as an executive or manager at that company for one of the three years before arrival in the United States. (The prerequisites are similar to those for L-1 intra-company transferee nonimmigrant visas.)

Your petitioning employer must be a U.S. employer and intend to employ you in a managerial or executive capacity. The petitioner must have been doing business in the U.S. for at least one year as a legal entity with a qualifying relationship to the entity that employed you abroad in a managerial or executive capacity. No labor certification is required.

Not only does the foreign national need to meet the various qualification requirements under this subcategory, but the employer, including its foreign and U.S.-based offices, must also meet specific qualifications, including that the two are either:

1. different branches of the same company

2. a joint venture where the parent company owns half or has equal control and veto power

3. related so that one company is a majority-controlled subsidiary of the other, or

4. affiliated such that both companies are under the control of the same person, persons, company, or group of companies.

Care must also be taken to ensure that the job position, both inside and outside of the U.S., is demonstrably “executive” or “managerial.” A manager, under the immigration laws, is said to be a person who:

1. manages the organization, or a department, subdivision, function, or component thereof

2. supervises and controls the work of other employees in supervisory, professional, or managerial positions, or manages an essential function of the organization

3. is authorized to hire and fire the persons supervised, or if none are supervised, works at a senior level within the organization, and

4. is authorized to make decisions concerning day-to-day operations of the organization’s activities or functions over which the manager has authority.

All four of the above criteria must be met for the foreign national’s job to be considered managerial. A supervisor below the middle management level, often called the first-line supervisor, is not usually a manager for EB-1 qualifying purposes. However, an exception may be made if the employees being supervised are themselves, professionals, with university degrees.

The immigration law’s definition of an executive is someone who:

1. directs the management of the organization or a significant part or function of the organization

2. sets the goals and policies of the organization or a part or function of the organization

3. has been given extensive decision-making authority, and

4. is subject to only general supervision or direction from higher-level executives, a board of directors, or the organization’s stockholders.

Application Process

1. Extraordinary Ability: You may apply for yourself (with the help of an Attorney) by filing a Form I-140, Petition for Alien Worker.

2. Outstanding Professors and Researchers: Your U.S. employer must file a Form I-140, Petition for Alien Worker. As part of the application process, your employer must demonstrate a continuing ability to pay the offered wage as of the priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.

3. Multinational Manager or Executive: Your U.S. employer must file USCIS Form I-140, Petition for Alien Worker. As part of the application process, your employer must demonstrate a continuing ability to pay the offered wage as of the priority date. Your employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay your wage.

Family of EB-1 Visa Holders

If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible for admission to the United States in E-14 or E-15 immigrant status, respectively.

This is simply a summary of the law, and it is not always easy to tell what type of job offers, or individual applicants, will successfully qualify in the EB-1 category. For more information, please contact us.