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 immediately, without having to wait for lengthy processing of a labor certification or for an immigrant visa to become available under the quota system. Even if a quota backlog develops in the EB-1 category (as occurred for China in the late 1990's and in 2005), the EB-1 backlog would be significantly less than the immigration categories that require labor certification.
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 (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!
The purpose of this article 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. Questions about EB-1 eligibility should be directed to an experienced immigration attorney.