The first employment based immigration preference category covers "priority workers." These are workers whose skills and talents are important to the U.S. - the "best and brightest." The annual cap on EB-1 visas is 40,000, plus any visas left over from the fourth and fifth employment based preference categories (special immigrants and immigrant investors). This is more visas than are ordinarily used in the category, so there are no backlogs in visa issuance in this category.
One of the most attractive aspects of the EB-1 category is that the labor certification requirement does not apply. This makes the time spent processing an EB-1 application much shorter than for categories that do require a labor certification.
Who is included in the EB-1 Category?
The EB-1 category covers three groups:
1. Aliens of extraordinary ability
2. Outstanding professors and researchers
3. International managers and executives
Aliens of Extraordinary Ability
How is extraordinary ability defined?
Extraordinary ability is a relatively new concept in immigration law, being introduced only in 1990. USCIS regulations define extraordinary ability as a "level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor."
Who is considered an alien of extraordinary ability?
This subcategory covers aliens possessing extraordinary ability in the sciences, arts, education, business or athletics. The extraordinary ability subcategory does not require a specific job offer, so long as the alien states that they will continue to work in the field of their extraordinary ability in the US. This means that the alien may file a petition on their own behalf, rather than having an employer file for them.
How can extraordinary ability be demonstrated?
There are two ways to demonstrate extraordinary ability. First, the alien can show that they have received a major, internationally recognized award such as a Nobel Prize or an Academy Award. The second and more common method is for the alien to show three of the following types of evidence:
- Receipt of lesser national or international prizes or awards for excellence in their field of endeavor
- Membership in associations in the field of endeavor that require outstanding achievements of their members
- Published material about the alien and his work in professional journals, trade publications, or the major media
- Participation, either in a group or alone, as a judge of others in the same or a similar field
- Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor
- Authorship of scholarly articles in the field, published in professional journals or the major media
- Display of the alien's work at artistic exhibitions or showcases in more than one country
- Performance in a lead, starring, or critical role for organizations with a distinguished reputation
- Commanding a high salary compared to others in the field
- Commercial success in the performing arts, as shown by box office receipts and sales
- Receipt of lesser national or international prizes or awards for excellence in their field of endeavor
Realizing that these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, the USCIS has also included a catch-all category allowing submission of other comparable evidence.
Outstanding Professors and Researchers
What type of evidence is required for the Outstanding Professors and Researchers subcategory?
The evidentiary requirements for this category are as follows:
- International recognition as outstanding in a specific academic field
- At least three years teaching or research in the field. The teaching or research experience can be gained while in pursuit of an advanced degree, but only if the alien had full responsibility for the courses taught, or the research is recognized as outstanding.
- An offer of employment. There are three forms this offer can take:
- A tenure or tenure-track teaching position or a comparable research position, or
- A research position with no fixed term in a position where the employee would generally have the expectation of permanent employment, or
- A research position with a private company if the employer has at least three full time researchers and has documented research accomplishments in the field.
Unlike aliens in the extraordinary ability subcategory, aliens in the outstanding professor or researcher subcategory must have a job offer. However, as with all first preference employment petitions, no labor certification is required.
How can an applicant prove him/herself to be an outstanding professor or researcher?
An alien demonstrates that their work has been recognized as outstanding in the international arena by presenting evidence similar to that required to show extraordinary ability. Two of the following types of evidence are required:
- Receipt of a major international prize or award for outstanding achievement in the academic field,
- Membership in associations that require outstanding achievements of their members,
- Material in professional publications written by others about the alien's work,
- Participation as a judge of the work of others in the field,
- Original contributions in the field, or
- Authorship of scholarly books or articles in journals with international circulation.
There are types of evidence that are more useful than others. A book published by a vanity press will not be given much weight, nor will mentions of the alien's work without evaluation. Strong evidence includes peer-reviewed publications and participation as a peer-reviewer. As always, one of the strongest types of evidence is the submission of letters from academic peers.
Also, the alien must submit letters from past employers documenting at least three years of teaching or research experience.
How can an applicant prove he/she has been offered permanent employment?
Along with the petition, the potential employer must submit a letter outlining the employment offer. The letter must include the basic terms of employment, including the salary offered. More difficult is describing the position. If the position offered is a tenured position, or a tenure-track position, then it is simple. However, few research positions are tenured. Qualifying research positions, therefore, can include positions that do not have a fixed duration but are the sort of position in which the alien can expect permanent employment.
Are there different requirements for private employers?
Private employers face additional requirements. The employer must show that they employ three full-time researchers and that research conducted by the employer has resulted in documented accomplishments. INS rules provide no information on how a private employer can document research accomplishments. The best evidence possible should be submitted, which would include any patents issued to researchers at the institution, and articles published by employees.
Multinational Executives and Manager
How does one qualify as a Multinational Executive or Manager?
To qualify as an executive or manager transferred to the U.S., the alien must have worked for an affiliate of the Petitioner for at least one year of the previous three. This does not need to have been completed in one stretch, but can be aggregated. This work must be in an executive or managerial capacity. Also, the alien must be coming to the U.S. to work in an executive or managerial capacity. If the alien is already in the U.S., the required one year of employment in the past three will be determined by looking at the three years prior to the alien's transfer to the U.S. The U.S. business must have been established for at least one year before filing the petition.
What does executive capacity mean?
Executive capacity means a position where the employee personally:
- Directs the management of the organization or a component or function;
- Establishes goals and policies;
- Exercises a wide latitude in discretionary decision making; and
- Receives only general supervision or direction from higher level executives, board of directors, or stockholders.
The overall size of the organization is also a factor in determining whether or not a position is at the executive capacity. The larger the organization, the more reasonable an international transfer is.
What does managerial capacity mean?
Managerial capacity means a position where the employee personally:
- Manages the organization, department, subdivision, function or component;
- Supervises and controls other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
- Has authority to make personnel decisions or recommend personnel actions (if another person directly supervises employees); and
- Exercises discretion over day-to-day operations of the activity or function.
As with executives, the size of the business is an important factor.
If this category sounds familiar, it is because it is very similar to the
L-1 nonimmigrant category. There are a few differences.
EB-1s are only available to managers and executives, and not workers with specialized knowledge.
Second, unlike L-1's, the US branch of the business must have been in operation for one year before
petitioning for an immigrant worker.
Application Procedures in the EB-1 category:
An individual or employer must file a Form I-140 (Petition for Alien Worker) with the USCIS Regional Service Center that has jurisdiction over the place where the individual will work. The petition packet must include the required documentary evidence and should follow the specific filing guidelines of the Service Center. No labor certification is needed for EB-1 petitions.
Once the I-140 immigrant visa petition is approved, the alien and his/her spouse and children under 21 years of age may apply for their immigrant visas either through adjustment of status in the United States or through consular processing at a U.S. Consulate outside of the United States.
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