A Closer Look At Employment-Based Immigration: First Preference EB-1

By James A. Bach

Most employment-based immigration is based on a labor certification, a lengthy process of proving to the US Department of Labor that there a shortage of US workers who are willing and able to do the job filled by the immigrant. However, the Immigration and Nationality Act provides for several employment-based categories that do not require labor certification. 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 is that foreign workers can submit an immigrant visa petition (I-140) immediately, without having to wait a year or more for labor certification processing. Also, EB-1 I-140s can be filed using “Premium Processing”, which ensures a response from the USCIS within two weeks of filing. Finally, the EB-1 employee usually can apply for adjustment to permanent resident status immediately, without having to wait for an immigrant visa to become available under the quota system. Even those who were born in a country with a backlogged EB-1 quota, such as China and India, might be able to apply for adjustment of status immediately if they have an early priority date from a previously approved I-140.

However, 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.

EB-1 (Workers with Extraordinary Ability)

One of the benefits of the EB-1 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.

However, simply providing evidence in three of these categories is not sufficient to establish for EB-1 extraordinary ability. That is only the first step. The second, and more important step, is to demonstrate to the USCIS that the extraordinary person has established national or international recognition, and is one of the top people in the field of endeavor.

EB-1 extraordinary workers may be: scientists who have been awarded important patents, or written scholarly articles; top athletes; star movie actors; famous musicians; artists; top chefs; or business entrepreneurs. Those who have written a book, lectured extensively in their field, or received prizes and awards, may be eligible for this immigration category.

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:

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
Have tenure or tenure track teaching or comparable research position at a university, other institution of higher education, or a 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, and include the following:

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 might meet the definition of a "function manager" since he or she is key to the company's functioning and success, and operates at the highest level of the corporations hierarchy.

Often, top managers and executives have a 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!

* The purpose of this article is to inform potential clients of the type of legal issues our firm handles. It is not intended to be an exhaustive discussion of the subject, or establish any attorney/client relationship; and we accept no responsibility for the accuracy of the information provided.

A Closer Look At Employment-Based Immigration: First Preference EB-1

​

EB-1 (Workers with Extraordinary Ability)

EB-1 (Outstanding Professors and Researchers)

EB-1 (Multinational Executives and Managers)