EB-1: Priority Workers
EB-1 VISAS: EMPLOYMENT BASED GREEN CARD FIRST PREFERENCE
Some skilled and accomplished foreign nationals may consider applying for an EB-1 visa. EB-1 visas are immigrant visas, as opposed to non-immigrant visa categories temporary in nature, and constitute an employment-based green card option. As such EB-1 visas can clear the path to your permanent residency and, ultimately, citizenship—if this is your immigration goal. Therefore, EB-1 visas are an attractive option, albeit one that is not easy to obtain. In fact, the requirements can seem quite overwhelming, and the colloquial reference to EB-1 visas as “Einstein visas,” does nothing to alleviate this. But, while EB-1 visas pose high demands, compared to other visa categories, the requirements are not impossible to meet. Clearly, you will need accomplishments, even impressive ones. However, much will depend on how your achievements are presented. The legal standards are under formidable scrutiny but there are various ways to meet them. Consequently, it is advisable that you discuss the specifics of your situation with a specialized immigration attorney, if you want to decide whether an EB-1 visa is a viable option for you.
Among the employment-based green card categories, EB-1 immigrant visas are intended for “first preference priority workers.” This term refers to people who have distinguished themselves, to the extent that they have reached the very top of their respective fields. In other words, if you are unusually good at what you are doing, surpassing most others in your field, and have a solid record of achievements to prove it, EB-1 visas may be the right category for you. In general, EB-1 visas fall under three distinct categories:
- Individuals of extraordinary ability: this category is meant for people who can prove sustained national or international acclaim in their field. There is no specific list of occupations that qualify. Instead, various professionals in the broadly defined fields of arts, sciences, business, and athletics may qualify for EB-1 classification. What matters is that applicants can demonstrate that only a small percentage of their peers have reached their level of expertise and that their abilities are recognized within their field. To qualify, you must demonstrate that you have either earned one major recognition or that you meet at least three out of ten specific criteria (see discussion below).
- Outstanding professors and researchers: This category includes professors and researchers that have gained international recognition in their field. Note that merely holding an advanced degree, such as a Ph.D. or equivalent doctorates, is not sufficient to meet this criterion. Instead, you must have three years of teaching or research experience and seek to enter the United States for a tenured, or tenure-track, research or teaching position. In addition, you must be able to demonstrate international recognition in your field (see discussion below).
- Multinational executives and managers: This category applies to executives or managers of multinational corporations. Only certain companies qualify, and you must demonstrate that you will perform indeed in an executive or managerial capacity (see discussion below).
What follows is a brief discussion of EB-1 visas, and the specific requirements of each category.
EB-1 A: Extraordinary ability in the Sciences, Arts, Education, Business or Athletics
This category is immensely attractive, not least because it allows for self-petitioning. In other words, you won’t need a job offer or an employer filing the petition for you. Nor does it require the tedious and time-consuming labor certification process. On the other hand, the standards to prove extraordinary ability are relatively high, although with prudent and strategic communication of your accomplishments, not impossible to meet. Specifically, the following criteria apply.
- A one-time major achievement: Are you a Pulitzer Prize winning writer, a Nobel Prize winning scientist, or a Gold Medal winning Olympian? In this case, you are pretty much set. If you have such overwhelming recognition, all you need is some patience for the elaborate paperwork and a credible plan to stay in your field. In any case, recognition of this magnitude should make your case highly approvable. But if you are like most people, you probably do not have such major achievements on your resume. In fact, even among successful EB-1 visa holders, they are incredibly rare.
Nevertheless, you may still qualify for an EB-1 visa for extraordinary ability, if you can demonstrate that you meet 3 out of 10 specific criteria. Indeed, this is how most EB-1 visa holders prove their qualification. These 10 criteria are:
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence: Not every award is at the level of an Oscar or a Nobel Prize. But lesser national or international awards may qualify for this criterion. For instance, an actor who won the “Best Acting” trophy at a small but recognized film festival may meet this criterion.
- Evidence of your membership in associations in the field which demand outstanding achievement of their members. Memberships that are solely based on the payment of fees are not sufficient. But memberships in associations that are based on merit, as judged by recognized experts in the field, meet this criterion. For example, a researcher whose peers approve her membership to a recognized Academy of Science, due to the importance of her work, will likely meet this criterion.
- Evidence of published material about you in professional or major trade publications or other major media. You don’t have to be on the cover of Time Magazine to qualify, although this would certainly help. But if reputable trade publications, aimed at fellow professionals in your field, have shown interests in you and your work, you may meet this criterion.
- Evidence that you have been asked to judge the work of others, either individually or on a panel. Are you an athlete who has been asked to be a jury member for a tournament in your sport? Perhaps you are an artist who has judged the submission to a competition. In such cases, you may meet this criterion.
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field. This criterion is relatively flexible. There are various ways to demonstrate that you qualify. Perhaps reputable experts can testify to the impact of your work. Perhaps there are quantitative data supporting your claim. In any case, what matters is not only that your work is original but that it also has somehow impacted the standards, procedures, or recognition of your field.
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media. This criterion is not limited to peer-reviewed articles in academic journals. But if you shared your expertise with a learned audience in a publication that is significant in your field, you may qualify.
- Evidence that your work has been displayed at artistic exhibitions or showcases. Are you a visual artist who has had a solo exhibition? Has your work been prominent in curated exhibitions of multiple artists? In these or comparable cases, whenever a significant venue or organization has deemed you work relevant enough to dedicate space and resources to showcase it, you may qualify.
- Evidence of your performance of a leading or critical role in distinguished organizations. Merely doing your job for an employer, no matter how competent and reliable, is not sufficient. But if your work has affected the performance of a company or a non-profit organization, created access to new markets, or introduced new procedures, then the requirements of this criterion may be fulfilled.
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field. You do not have to earn a huge salary to meet that criterion. But if you earn clearly more than comparable professionals in your field, or you have been contracted for projects at an exceptionally high rate, your earnings may suffice.
- Evidence of your commercial successes in the performing arts. Commercial success can be shown through box office sales, chart positions, or royalty checks. However, to meet this criterion it is not enough to show that you have participated in a successful production. You must also show that this success was linked to you and your performance. Perhaps you were on the poster advertising a play, or you were interviewed to promote a film in which you were starring. Authors, such as playwrights of successful stage productions, may also qualify.
As initially stated, the advantages of EB-1A visas are remarkable. At the same time, it is quite difficult to qualify for this path to permanent residency and petitions are under major scrutiny. Nonetheless, there are various ways to argue that you meet the criteria and different types of evidence to demonstrate it. An experienced immigration attorney will be able to discuss your chances and help you prepare your case in the most effective way.
EB-1B: Outstanding Professors and Researchers
This category does not require a labor certification either. However, you will need at least 3 years of teaching or research experience in your academic field. Moreover, you will have to present a job offer from a teaching or research institution for a tenured or tenure-track position. Equivalent offers of researcher jobs from private employers may qualify. To show the required international recognition, applicants must meet at least two of the following six criteria.
- Evidence of receipt of major prizes or awards for outstanding achievement. If, as an individual researcher, you have won national or international awards for outstanding work in your field, you have good chances to meet this criterion. If the award was granted to a research team, your chances will increase if it can be shown that your contributions played a major role in the research effort.
- Evidence of membership in associations that require their members to demonstrate outstanding achievement. Membership only qualifies if it cannot simply be gained by paying your dues. However, if recognized experts in your field grant you membership, due to your outstanding achievements, you may qualify for this criterion.
- Evidence of published material in professional publications written by others about the noncitizen’s work in the academic field. Peer-reviewed publications are the main mode of communicating findings and knowledge-sharing in most academic fields. Your chances to meet this criterion improve if you are the sole author rather than one of many co-authors of a publication.
- Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field. If reputable experts in your field deem you sufficiently competent to judge the work of others, you have good chances to meet this criterion.
- Evidence of original scientific or scholarly research contributions in the field. The significance of your work can be demonstrated in various ways. High citation numbers, frequent invites to academic conferences and symposia, and testimonials by reputable peers may show that your original work is especially relevant in your field.
- Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field. This criterion is relatively straightforward. Obviously, you will need publications—ideally, as the sole author or, at least, as a prominent co-author. Books that were published by a recognized publisher of academic monographies will have more weight. Articles will be more significant if the journal’s international circulation is apparent. The latter may be indicated by a significant international readership or the publication’s international impact, as shown by recognized citation metrics (e.g., impact factor or journal citation indicator).
If you are scholar who has established a good reputation in your field and whose work is widely recognized, you may qualify for both the EB-1A and EB-1B visa categories. In this case, EB-1A may be more attractive since no petitioner or job offer is required. At the same time, it may be more difficult to meet the criteria. Many academic applicants opt for filing petitions in both categories. Or perhaps a “second preference” EB-2 petition is your most promising option. An experience attorney can help you develop the best possible strategy for your specific situation.
EB-1C: Multinational Managers and Executives
This third EB-1 category is meant for managers and executives of multinational corporations. If you have been employed abroad by a company with ties to the U.S. and are being transferred to the U.S., this may be the appropriate path to permanent residency for you. This visa category is also frequently utilized by L-1A or E-2 nonimmigrant visa holders, who wish to adjust their status to permanent residency.
Again, no labor certification is required, but you will need a petitioner for an EB-1C petition. Only certain kinds of petitioning employers qualify. First, the business must be “multinational,” meaning there must a qualifying relationship between the U.S. company the foreign company, specifically, parent, affiliate, subsidiary or branch. As well as the company must have been doing business in the U.S. for at least one year. Most importantly, this category was initially designed for larger international organizations transferring their employees into the U.S. Therefore, if you plan to apply for green card using this category, you will need to substantially develop the U.S. operations either through high revenue coupled with substantial international support or through complex staffing.
In addition to the company criteria, this EB-1 category also entails specific requirements for you, the employee. You must have been employed by your petitioning company for at least 1 of the preceding 3 years. Moreover, this employment, as well as your prospective role in the U.S., must have been in a managerial or executive capacity.
In short, managers are
- in charge of a function or a department of an organization;
- supervise the work of others and hire or fire subordinates; and
- are in the position to control the daily activities and salaries of employees.
Executives, on the other hand,
- direct the managers in an organization;
- make far-reaching decisions without substantial supervision; and
- establish long-term goals and policies.
There are various ways to demonstrate that the requirements for either role are fulfilled. An experienced immigration attorney can help you and your employer prepare the EB-1C petition, by reviewing the documents to assess your chances. Moreover, your attorney can help you present your evidence most effectively to demonstrate that your past experience and proposed future role qualify as managerial or executive.
To conclude, EB-1 visas are an attractive option for highly skilled individuals wishing to gain permanent residency in the United States. However, meeting the requirements for this visa can be quite challenging. It is, therefore, advisable to seek the advice of a specialized immigration attorney, who can help you decide whether pursuing EB-1 classification is a worthwhile option for you. If it turns out that your professional background and your achievements suggest that you have indeed a good chance to have an EB-1 petition approved, you should continue to work closely with an attorney. Only for a minuscule percentage of applicants, such as Nobel Prize laureates, is it self-evident that they are individuals of extraordinary ability. For all others, the chances of approval depend on the combination of a solid record of achievements and prudent presentation of the evidence.
Moreover, the process of adjudicating petitions is not mechanical, in the sense of a simple “checklist.” Instead, the USCIS officer will apply a two-step procedure, by first assessing whether the criteria are met. Then, the officer will evaluate whether the totality of evidence demonstrates by a “preponderance of evidence” that the high level of expertise required for “extraordinary ability” is indeed present (i.e., the petition must show that the evidence demonstrates that it is more likely than not that the applicant is qualified for the first preference category). This is another reason why the contributions of a skilled immigration attorney can make a crucial difference. Whatever evidence of your accomplishments you may have, it will be much more effective if it is skillfully presented, while considering all legal constraints and pitfalls. Therefore, the guidance of an immigration attorney, who takes the time to understand your case and can explain its merits to the adjudicating USCIS officer, is crucial.
Our firm has helped countless clients to obtain permanent residency through employment-based immigration. Our team is especially knowledgeable about EB-1 visa petitions. If you think that EB-1 visas may be the right option for you, please do not hesitate to contact us. We will gladly assess your case, relying on our expertise and extensive experience. If our discussion with you reveals that EB-1 is a promising path to your permanent residency in the United States, we will help you prepare your case and increase your chances of approval. We look forward to hearing from you.