A Closer Look At Employment-Based Immigration: First Preference EB-1
The Immigration and Nationality Act provides for several employment-based categories for
immigration purposes. One such category is the First Preference (EB-1 priority workers)
category. The primary benefits of applying for an immigrant visa in the EB-1 category are
no labor certification requirement and immediate visa availability in most cases.
This means that foreign workers who qualify for the EB-1 category will be able to
file for adjustment to permanent resident status as soon as their immigrant visa petition
is prepared, filed and approved. They will not have to wait for labor certifications to be
approved in order to file their immigrant visa petitions nor wait for priority dates to
become current. Those eligible will also save valuable time by skipping the labor
certification process. Further, future backlogs for the EB-1 category would be minimal
compared to oversubscribed EB-2 and EB-3 categories.
Needless to say, qualifying for the EB-1 category is not easy. Within the EB-1
category, there are three sub-categories: 1) workers with extraordinary ability; 2)
outstanding professors and researchers; and 3) multinational executives and managers. This
article will discuss the qualifications for the three sub-categories with a focus on the
potential applicability of the multinational executives and managers sub-category for
people who are running out of time on their H-1B six-year limit or have not yet begun
their immigration cases.
EB-1 (Workers with Extraordinary Ability)
One of the benefits of the EB-1 (workers of extraordinary ability) classification
is that no job offer is required. This means that a foreign worker may self-petition for
an immigrant visa without an employer. The basic requirements for EB-1 (workers of
extraordinary ability) is that: 1) the foreign worker must be a worker of extraordinary
ability, and 2) he/she will continue to work in the United States in his/her area of
expertise.
Workers of extraordinary ability are defined by the Immigration and Nationality
Act section 203(b)(1)(A)(i), as those who can show that they have "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."
The main criteria for qualifying for this sub-category is the receipt of a major,
internationally recognized award, such as the Nobel Prize. However, the regulations also
provide for alternative evidence to establish extraordinary ability. Normally, the
alternative evidence requirement is met by evidence that the foreign worker meets at least
three of the following criteria:
Receipt of lesser 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 the foreign worker.
Evidence that the foreign worker is a judge of the work of others in the field.
Evidence that the foreign worker’s original contributions of major
significance to the field.
Authorship of scholarly articles.
Display of work at artistic exhibitions or showcases.
Evidence the alien has performed in a leading or critical role for organizations
that have a distinguished reputation.
Evidence that the foreign worker commands high remuneration in relation to others
in the field.
Evidence of commercial success in the performing arts.
EB-1 (Outstanding Professors and Researchers)
In order to qualify for EB-1 (outstanding professors and researchers)
classification, the foreign worker must meet three basic requirements:
Internationally recognized as outstanding in a specific academic field;
(as normally evidenced by meeting at least two of the following criteria:
- receipt of major prizes or awards
- membership in association which require outstanding achievements
- published material in professional journals written by others
about their work
- participation as a judge of the work of others in the field
- original scientific or scholarly research contributions to the field
- authorship of scholarly books or articles in journals with
international circulation in the field)
Have a minimum of three years of experience teaching and/or researching in that
field; and
Enter the United States in tenure or tenure track teaching or comparable research
position at a university, other institution of higher education, or private company that
employs at least three full time researchers and has documented accomplishments in the
academic field in which the job position is offered.
EB-1 (Multinational Executives and Managers)
The requirements to qualify for EB-1 (multinational executives and managers)
classification closely track those for L-1A intracompany transferees. The requirements are
as follows:
A multinational manager or executive is eligible for EB-1 classification if he or
she has been employed outside of the U.S. in a managerial or executive capacity for at
least one of the three years immediately preceding the filling of the petition, or, in the
case of a foreign worker presently in the U.S., one of the three years preceding entry to
the U.S. as a non-immigrant.
The petitioner for the employment-based immigrant visa must be a U.S. employer that
is an affiliate, subsidiary, parent or same employer as the employer that employed the
foreign worker abroad in a managerial or executive capacity.
The beneficiary must be coming to the United States to work in a managerial or
executive capacity.
"Managerial capacity" means an assignment in which the employee
primarily:
- manages the organization or a department, subdivision, function or component of
the organization;
- supervises and controls the work of other supervisory, professional or managerial
employees or manages an essential function within the organization, or a department of
subdivision of the organization;
- if other employees are directly supervised, has the authority to hire and fire or
recommend those as well as other personnel actions (such as promotion and leave
authorization) or, if no other employee is directly supervised, functions at a senior
level within the organizational hierarchy or with respect to the function managed; and
- exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority.
"Executive capacity" means an assignment within an organization in which
the employee primarily:
- directs the management of the organization or a major component or function of
the organization;
- establishes the goals and policies of the organization, component, or function;
- exercises wide latitude in discretionary decision making; and
- receives only general supervision or direction from high level executives, the board of
directors, or stockholders of the organization.
Employment-based immigration is at an all time high causing delays in U.S.
government processing times and backlogs in per-country quotas (especially in the EB-2 and
EB-3 categories for India and China). As a result, people from India and China who
are just now beginning their green card cases in EB-2 or EB-3 categories can reasonably
expect delays of two to four years before they will even be able to file their
applications for adjustment to permanent resident status.
In addition, many people currently in H-1B status may run out of time for
remaining in the United States before they can file their applications for adjustment to
permanent resident status. Current law allows for a total of six years in H-1B status. The
six years also includes time spent in L-1 status. When the six-year limit is reached, a
new six years may be obtained by spending a year outside of the United States.
People who are currently working for multinational companies in H-1B status and
who have advanced degrees and/or extensive relevant experience should consider looking for
employment opportunities within their current company, at a location abroad, in a
managerial or executive capacity for one year. A management position does not necessarily
require management of staff. Management of a function may be sufficient. After working
abroad for a year in a managerial or executive capacity, they may return to the United
States in L-1A status, and continue working in a managerial and executive capacity in the
United States. This employment abroad will not only have the effect of authorizing them to
remain and work in the United States for a new period of seven years (L-1A limit) but will
also lay the foundation for filing a Petition for First Preference (EB-1 priority worker)
classification.
This strategy is most applicable to people who have not yet begun their green card
cases or are nearing their H-1B six-year limit, and are facing extremely long delays in
processing times due to visa availability. In some cases, the shortest route to reaching
the goal of permanent resident status may be to leave the United States.
* The purpose of this newsletter is to inform potential clients of the type of
legal issues our firm handles. It is not intended to establish any attorney/client
relationship, and we accept no responsibility for the accuracy of the information
provided. We cannot discuss or clarify any of the information contained in our
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