EB-1 (PRIORITY WORKERS)
OVERVIEW
This employment based immigration category is available to priority workers considered to be the following:
- Individuals with extraordinary ability in the sciences, arts, education, business or athletics;
- Outstanding professors and researchers;
- Certain multinational executives and managers.
The advantages in being able to file under is this category is that no labor certification is required and visa numbers are currently available in this category (i.e., no backlogs).
A breakdown of these categories is provided below.
Individuals with extraordinary ability in the sciences, arts, education, business or athletics
SOURCES OF LAW
Statute: INA Section 203(b)(1)(A)
Regulations: 8 CFR Section 204.5(h)
KEY REQUIREMENTS
In order to qualify under this category, the individual must possess “extraordinary ability” in the sciences, arts, education, business or athletics. This is an extremely high standard to meet.
“Extraordinary ability” is defined by regulation as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” The field of endeavor includes the sciences, arts, education, business or athletics.
Documenting that the individual possesses “extraordinary ability”
The statute provides that the individual’s extraordinary ability must be “demonstrated by sustained national or international acclaim”. The individuals’ achievements must be “recognized in the field through extensive documentation”.
This documentation may be in the form of either: (a) one major international award (such as a gold medal or Nobel Prize) or (b) at least three types of evidence listed in the regulations. These possible sources of documentation are summarized as follows:
- Prizes or awards (recognized on a national or international basis in the field of endeavor);
- Membership in certain associations (where membership is based on outstanding achievement);
- Published material about the individual (in major media sources, or trade or professional journals);
- Participation as a judge of work of others in the field;
- Original contributions of major significance in the field;
- Authorship of scholarly articles (in major media sources, or trade or professional journals);
- Display of the individual’s work in artistic exhibitions;
- Performance of a critical or important role in an organization with a distinguished reputation;
- High salary compared to others in the particular field; and
- Commercial success in the performing arts (box office receipts, evidence of record sales, etc.)
LABOR CERTIFICATION REQUIRED?
No. As with all other areas of the EB-1 category, an approved labor certification (Form ETA 750, Parts A and B) is not required.
The fact that a labor certification is not required is a big advantage to individuals wishing to file under this category since the labor certification process can take up to several years to complete.
EMPLOYMENT OFFER REQUIRED?
No. An individual filing under the “extraordinary ability” standard does not need an offer of employment. Such an individual may self-petition (i.e., filing his or her own Form i-140 on his or her behalf).
Even though an offer of employment is not required, the Regulations require “clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.
PROCEDURE
Since no labor certification or offer of employment is required, the individual seeking permanent residence as an “extraordinary alien” can file Form I-140 (Petition for Alien Worker) on his own (i.e., self-petition), along with the documentation listed above and required by the regulations.
If the individual is outside the United States, he or she would request consular processing at the consular post in his or her country of residence. Upon approval of the Form I-140 Petition, the individual would use consular processing to obtain his or her immigrant visa.
If the individual is in the United States and there is a visa number currently available (i.e., there are no backlogs in the EB-1 category for extraordintary aliens), the individual who is otherwise eligible may file his or her Form I-485 concurrently.
Outstanding professors and researchers
SOURCES OF LAW
Statute: INA Section 203(b)(1)(B)
Regulations: 8 CFR Section 204.5(i)
KEY REQUIREMENTS
In order to qualify under this category, the individual must be an outstanding professor or researcher. This is a very high standard to meet.
Documenting that the individual is an “outstanding” professor or researcher
There are two main criteria that must be documented. First, the professor or researcher must be “recognized internationally as outstanding” in a particular academic field. Second, the individual must have at least three (3) years of experience in teaching and/or research in the academic field. The regulations limit the ability to counting teaching or research experience that is gained while working on an advanced degree.
To prove that the professor or researcher is “recognized internationally as outstanding”, at least two (2) of the following six (6) types of evidence must be offered:
- Receipt of major prizes or awards for outstanding achievement in the academic field;
- Membership in associations in the academic field which require outstanding achievement of their members;
- Published material in professional publications written by others about the work of the professor or researcher;
- Participation as a judge of the work of others in the same or similar academic field;
- Original scientific or scholarly research contributions to the academic field; or
- Authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
LABOR CERTIFICATION REQUIRED?
No. As with all other areas of the EB-1 category, an approved labor certification (Form ETA 750, Parts A and B) is not required.
The fact that a labor certification is not required is a big advantage to individuals wishing to file under this category since the labor certification process can take up to several years to complete.
EMPLOYMENT OFFER REQUIRED?
Yes. An individual filing under the “outstanding professor or researcher” standard must have an offer of employment. As a result, such an individual may not self-petition.
The offer of employment must be in the form of a letter from a United States college or university offering a tenure (or tenure-track) teaching position or a permanent research position. In addition, the offer of employment may also be from a private employer offering a permanent rsearch position so long as the private employer also employs three (3) or more full-time researchers and it has accomplishments in an academic field.
PROCEDURE
Since no labor certification is required, the prospective U.S. employer (i.e., either a U.S. college / university or certain private employers as determined by the regulations) can file the Form I-140 (Petition for Alien Worker) on behalf of the individual seeking classification as an “outstanding professor or researcher”, along with its offer of employment and the documentation listed above and required by the regulations.
If the individual is outside the United States, he or she would request consular processing at the consular post in his or her country of residence. Upon approval of the Form I-140 Petition, the individual would use consular processing to obtain his or her immigrant visa.
If the individual is in the United States and there is a visa number currently available (i.e., there are no backlogs in the EB-1 category for outstanding professors or researchers), the individual who is otherwise eligible may: (a) file his or her Form I-485 concurrently (i.e., at the same time that the Form I-140 is filed); or (b) file the Form I-485 upon approval of the Form i-140 (Petition for Alien Worker).
Certain multinational executives and managers
SOURCES OF LAW
Statute: INA Section 203(b)(1)(C)
Regulations: 8 CFR Section 204.5(j)
KEY REQUIREMENTS
In order to qualify under this EB-1 classification, the individual must be an executive or manager who has worked outside the United States for the multinational corporation for at least one (1) year out of the previous three (3) years in a managerial or executive capacity.
Documenting that the individual is an eligible multinational executive or manager
This classification focuses on: (1) the relationship between the U.S. employer (the Petitioner) and its related entity abroad; and (2) the work history of the individual being sponsored under this classification.
LABOR CERTIFICATION REQUIRED?
No. As with all other areas of the EB-1 category, an approved labor certification (Form ETA 750, Parts A and B) is not required.
The fact that a labor certification is not required is a big advantage to individuals wishing to file under this category since the labor certification process can take up to several years to complete.
EMPLOYMENT OFFER REQUIRED?
Yes. An individual seeking classification as a multinational executive or manager must have an offer of employment from a multinational corporation doing business in the United States. As a result, such an individual may not self-petition.
The offer of employment must be in the form of a letter from the U.S. multinational employer which sets forth, among other things, the relationship between the U.S. employer and its related entity abroad as well as the executive or managerial nature of the sponsored individual both abroad and to be performed in the United States.
PROCEDURE
Since no labor certification is required, the prospective U.S. employer can file the Form I-140 (Petition for Alien Worker) on behalf of the individual for whom classification is sought as a multinational executive or manager, along with its offer of employment and the documentation listed above and required by the regulations.
If the individual is outside the United States, he or she would request consular processing at the consular post in his or her country of residence. Upon approval of the Form I-140 Petition, the individual would use consular processing to obtain his or her immigrant visa.
If the individual is in the United States and there is a visa number currently available (i.e., there are no backlogs in the EB-1 category for multinational executives or managers), the individual who is otherwise eligible may: (a) file his or her Form I-485 concurrently (i.e., at the same time that the Form I-140 is filed); or (b) file the Form I-485 upon approval of the Form I-140 (Petition for Alien Worker).