By James A. Bach, Esq.*
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) are: 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. The focus therefore is both on
past accomplishments and the potential for future contributions.
Workers of extraordinary ability are defined by the
Immigration and Nationality Act 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."
An applicant can qualify for this sub-category
by showing the receipt of a major, internationally recognized award, such as the Nobel Prize,
or at least three of the following:
- 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)
To qualify for the EB-1 (outstanding professors and
researchers) classification, the foreign worker must meet three basic requirements:
I. 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)
II. Have a minimum of three years of experience teaching and/or researching
in that field; and
III. Have 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 for EB-1 (multinational
executives and managers) classification closely track those for L-1A intracompany
transferees, as follows:
- 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. in a nonimmigrant status such as L-1 or H-1B.
- The petitioner for the employment-based immigrant visa must be a U.S.
employer that is an affiliate, subsidiary, or parent of the company (or the
same company) that
employed the foreign worker abroad in a managerial or executive capacity.
- The applicant 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.
A
management position therefore does not necessarily require management of staff,
and management of a key company function may be sufficient. For example, a
Chief Financial Officer (CFO) of a small company may have no other accountants,
analysts, or controllers on staff and may perform all of those functions himself
or herself, or hire outside auditors. However, the CFO clearly meets the
definition of a "function manager" since he or she is key to the company's
functioning and success.
Often, top managers and executives have a very difficult time
obtaining labor certification because it may be difficult to demonstrate that
there is a shortage of Americans who want their jobs, or because they may have a
significant ownership interest in the company. If they never worked for a
branch of the company outside of the U.S. they also would be ineligible for the
EB-1 (transferring managers and executives) category. One solution would
be to find opportunities to transfer within their company to a location abroad
for one year within a three year period. 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 would have
difficulty obtaining labor certification, or who face 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
temporarily leave the
United States!
