Employment-Based Immigration: First Preference EB-1

Extraordinary Ability

Eligible immigrants in the “Extraordinary Ability” category may petition for him or herself and must possess an extraordinary ability in the sciences, arts, education, business, or athletic fields. You must be able to demonstrate this extraordinary ability through sustained national or international acclaim, and your achievements must be recognized in your field of expertise through extensive documentation.  Unlike most employment-based visas, you do not need an offer of employment in order to qualify, but you must plan to continue working in your area of extraordinary ability.  Finally, your admission to the United States must prospectively benefit the United States in a substantial way.

EB-1-A Extraordinary Ability Standard

An immigrant may qualify for an EB-1 Visa as a person with extraordinary ability if he or she:

• • has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
  • seeks to enter the United States to continue work in the area of extraordinary ability, and
  • his or her entry into the United States will substantially benefit prospectively the United States

What evidence do I need to prove my extraordinary ability?

USCIS provides a list of ten (10) criteria for determining extraordinary ability:

• • Receipt of nationally or internationally recognized prizes or awards for excellence
  • Membership in associations in the field which demand outstanding achievement of their members
  • Published material about you in professional or major trade publications or other major media
  • You have been asked to judge the work of others, either individually or on a panel
  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Authorship of scholarly articles in professional or major trade publications or other major media
  • Your work has been displayed at artistic exhibitions or showcases
  • Performance of a leading or critical role in distinguished organizations
  • You command a high salary or other significantly high renumeration in relation to others in the field
  • Commercial success in the performing arts

Of these ten criteria, you must be able to provide evidence of at least three (or comparable evidence of such), or evidence of a significant one-time achievement that is internationally recognized (such as a Pulitzer, Oscar, Nobel Peace Prize, Olympic medal, etc).

What is considered an “extraordinary ability”?

In order to qualify for an EB-1-EA visa, USCIS requires you to show that you have an “extraordinary ability” in the fields of sciences, arts, education, business, or athletics, and you are involved in an activity which may benefit the U.S. national interest. USCIS defines “extraordinary ability” as “a level of expertise indicating that the individual is one of that small percentage who have risen to the top of the field of endeavor”.

What does “sustained national or international acclaim” entail?

The word “sustained” is unmeasurable and is left to the discretion of USCIS to determine in each individual case.  In general, your acclaim must be uninterrupted and ongoing. If you were recognized for your extraordinary ability years ago, USCIS must determine if you have maintained a comparable level of acclaim since the time of that achievement.

Significant one-time achievements, such as a Nobel Prize, may satisfy this requirement despite how much time has passed, even if you have not maintained your acclaim. However, if you have achieved recognition in the top of your field—many times in the areas of arts and athletics—and there has been a steady decline, you may have difficulty proving your acclaim is “sustained.”

For example, an athlete performing in the top of his field of sport may enjoy success for a few years; but because it is common for professional athletes to spend a short period of time at the top of their field, you may need a stronger showing of sustained acclaim over a longer period of time.

If you achieved sustained recognition in your field for many years but no longer work in that field, USCIS will be unlikely to approve your application unless it determines that you have maintained an acclaimed level.  You must be coming to the U.S. with the intent and qualifications to work in that field of extraordinary ability. Because a job offer is not required, a showing that you intend to work the field of expertise in which you gained sustained acclaim will largely depend on your own assertions about your future work intentions within the United States.

How do I apply for an EB-1 based on my extraordinary ability?

You can self-petition for an EB-1 based on Extraordinary Ability (“EB-1-EA”) on Form I-140, Immigrant Petition for Alien Workers. Unlike other employment-based categories, you do not need a labor certification, job offer, employer, or even a prospective employer to apply for the EB-1 based on your extraordinary ability.

Despite not requiring proof of employment, you must recognize that the EB-1-EA visa is typically very difficult to obtain as the legal standard requires you to have reached the very top of your field of expertise. It is a highly discretionary standard meant to be granted to only a small group of talented immigrants.

Because of the complexity of the EB-1-EA’s evidentiary requirements and strict legal standard, you should consult with an attorney at Potra Law Firm to determine whether you qualify for this rare, first preference employment visa.

Outstanding Professors and Researchers

Eligible immigrants in the “Outstanding Professors and Researchers” category must demonstrate that he or she has achieved international recognition for outstanding achievements in a particular academic field.  You must have a minimum of three (3) years of experience in teaching and/or research in your academic field. Finally, you must be entering the United States in order to pursue tenure or tenure track teaching or a comparable research position at a university or other institution of higher education.

Unlike self-petitioned EB-1-A cases, EB-1-B applications are employer-sponsored. This means it is up to the petitioner/employer to demonstrate to USCIS that you have an outstanding ability as a professor or researcher, as well as a permanent job offer.

EB-1-B Outstanding Professors and Researchers Standard

An immigrant may qualify for an EB-1 Visa as an outstanding professor or researcher if he or she:

• • is recognized internationally as outstanding in a specific academic area;
  • has at least three years of experience in teaching or research in the academic area, and
  • seeks to enter the United States—
    1. for a tenured position (or tenure-track position within a university or institution of higher education to teach in the academic area),
    2. for a comparable position with a university or institution of higher education to conduct research in the area, or
  • for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field.

What evidence do I need to prove that I am an outstanding professor or researcher?

USCIS provides a list of six (6) examples of documentary evidence that a person is an outstanding professor or researcher:

• • Receipt of major prizes or awards for outstanding achievement
  • Membership in associations that require their members to demonstrate outstanding achievement
  • Published material in professional publications written by others about your work in the academic field
  • Original scientific or scholarly research contributions in the field
  • Authorship of scholarly books or articles (in scholarly journals with internal circulation) in the field

Of the six criteria listed, you must show evidence of at least two.  In addition, you must show a valid offer of employment from a prospective U.S. employer.

Your evidence should consist of documents tending to show that you are recognized internationally, that you have at least three (3) years of experience teaching or researching, and that you have a “permanent” (tenured or tenure-track) position available and offered to you.

How do I apply for an EB-1 based on being an outstanding professor or researcher?

Unlike the EB-1-A for immigrants of Extraordinary Ability, the EB-1-B category for outstanding professors or researchers must be filed by the employer or prospective employer of the intending immigrant.  This means that it is up to your employer to submit documents and request the benefit; however, it will likely require your close cooperation and attention.

Without any need to obtain a labor certification prior to filing a petition with USCIS, your employer may submit your application for an EB-1-B Visa by filing Form I-140, Immigrant Petition for Alien Workers.  Aside from demonstrating that you are an outstanding professor or researcher, recognized internationally with the qualifying experience, the petitioning employer must also demonstrate to USCIS that it has a permanent position available for you.  This means that your employer sponsor must be prepared with an employment offer with employment terms that meet EB-1 regulations, including a description of your offered salary and the employer’s ability to pay and employee you on a continuous basis, without a clear employment end date.

Moreover, if your U.S. employer is a private company and not a university or other educational institution, the private employer must employ at least three (3) full-time researchers in the company’s research activities, and have achieved documented accomplishments in an academic field.

The attorneys at Potra Law Firm are highly qualified to prepare these complex documents and evidence requirements for your employer, so schedule your consultation today to discuss possible options for permanent residency.

Multinational Manager or Executive

Eligible immigrants in the “Multinational Manager or Executive” category must have been employed outside of the United States for at least one (1) year by the petitioning firm or corporation, during the three (3) years immediately preceding the filing of the petition, and must be entering the U.S. to continue employment with that firm or corporation. You must have been working outside the U.S. in a managerial or executive capacity with that firm or corporation, an affiliate of that firm or corporation, or a subsidiary.

EB-1-C Multinational Manager or Executive Standard

An immigrant may qualify for an EB-1 Visa as a multinational manager or executive if he or she:

• • in the 3 years preceding the time of the alien’s application for classification and admission into the United States, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof,
  • seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof, and
  • does so in a capacity that is managerial or executive.

What evidence do I need to prove that I am a multinational manager or executive?

Your petitioning employer need not submit any labor certification before filing for your EB-1-C petition.  Your employer does, however, need to include a statement in the petition that clearly shows the time period you have worked for the overseas company, and defines the relationship between the overseas company and the petitioning U.S. company that does business in the United States and intends to employ you. You may also submit evidence to show immigration that your offer of future employment falls in a clear executive or managerial capacity.

The sponsoring employer must be located in the United States, and be your same employer or a subsidiary or affiliate of the company abroad. There are no size or gross business volume requirements of the employer, but USCIS regulations do require that the employer must be conducting business in two or more countries, one of which is the United States, either directly or through its affiliates or subsidiaries. Moreover, the employing company must have been in business within the United States for at least one year prior to the filing of the EB-1 petition.

Your previous work and your future employment must be for work that is considered in a managerial or executive capacity. You must also have worked for the sponsoring company, its subsidiary, or affiliate, for at least one year abroad in the preceding three year period before the petition is filed. This one-year requirement does not have to be a consecutive time period, and the regulations may allow an aggregate of employment time during the three-year period.

What are the qualifications of a “Manager”?

An applicant meets the statutory definition of a “manager” if he or she:

• • Manages a corporation, department, subdivision, or function,
  • Supervises and controls the work of other supervisory, professional, or managerial employees, or else manage essential functions,
  • Has the authority to make personal decisions as to hiring and termination, or else function at a senior level, or
  • Exercises discretion over the day to day operations of the activity or function for which he or she has authority.

First-line supervisors are typically excluded from the statutory definition of a manager unless the employees he or she supervises are professionals. USCIS will also consider staffing levels as they relate to the reasonable needs of each business in its specific stage of development at the time the petition is filed.

Although the definition may seem simple, numerous legal terms of art are used in the determination of whether someone functions in a managerial capacity, and the immigration attorneys at Potra Law Firm are equipped to help you identify and evidence such findings.

What are the qualifications of an “Executive”?

An applicant meets the statutory definition of an “executive” if he or she:

• • Manages an organization, a major component, or function,
  • Has the authority to establish goals and policies,
  • Has wide latitude and discretionary decision making authority, or
  • Receives only general supervision from higher executives, a board of directors, or stockholders of the company.

This definition excludes executives who perform tasks that are considered necessary to produce the product or provide the service(s) offered by the company, if the executive is also a professional, such as an engineer or architect.

How do I apply for an EB-1 based on being a multinational manager or executive?

EB-1-C petitions take up the most immigrant visas annually allotted to the EB-1 First Preference category. This is because the requirements are much less discretionary in nature, and the evidence required is more readily available to petitioning employers. There is no self-petition available under this category, so if you may qualify as a Manager or Executive, you must have a sponsoring employer that qualifies to file the petition.

One major benefit of the EB-1 visa for Multinational Managers or Executives is that no labor certification is required to be filed and approved first. The petitioning employer must, however, provide a job offer and file the Form I-140, Immigrant Petition for Alien Worker on your behalf, with the required evidence. There are strict requirements that apply to both the petitioner and beneficiary, so it is important that the preparing attorney attaches evidence that clearly proves to USCIS that each party meets the EB-1-C criteria.

Frequently Asked Questions