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Employment Based Immigration — First Preference Category (EB-1) FAQs

How would I know if I qualify for the EB-1 “Extraordinary Ability” classification for permanent residency?
You may qualify for the EB-1 Alien of Extraordinary Ability category if you can answer “Yes” to the following questions.

Does my field involve the sciences, art, education, business or athletics?

Have I received sustained national or international acclaim? (Receipt of a major one-time achievement award (such as a Nobel Prize, Olympic Gold Medal, Academy Award)

Or at least three of the following:

  • Receipt of lesser nationally/internationally recognized prizes/awards for excellence in your field;
  • Membership in associations in your field which requires outstanding achievements in your field as judged by recognized experts in your field;
  • Evidence of published material about you in professional or major trade publications or other major media;
  • Participation as a judge (either individually or on a panel) of others in your field;
  • Major original contributions to your field;
  • Authorship of scholarly articles in your field published in major publications;
  • Display of your work in exhibitions or showcases;
  • Playing critical role for distinguished organizations;
  • Commanded very high salary compared to others in your field;
  • Commercial success in the performing arts.

Will I be able to provide extensive documentation of these minimum requirements?

Am I entering the United States to continue working in my area of extraordinary ability?

Will my entry into the United States substantially benefit the country?

Who can file a petition to classify someone as an alien of extraordinary ability?
The regulations specifically provide that a petition may be filed by anyone.

An alien or any person on behalf of the alien may file an I-140 visa petition for classification as an alien of extraordinary ability in the sciences, arts, education, business, or athletics.

Is a job offer in the United States required for the Alien of Extraordinary Ability category?
No, a job offer is not required for Aliens of Extraordinary Ability. However, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. This evidence may include letters from prospective employers, prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work, in the United States.

What does “Extraordinary Ability” mean?
The immigration regulations define “Extraordinary Ability” as a level of expertise indicating that the individual is one of that small percentage who has risen to the very top of the field of endeavor.

How does one prove “Extraordinary Ability”?
A petition for alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in his/her field of expertise.

How difficult is it to get an approval as an Alien of Extraordinary Ability?
If you meet the above criteria, the most important factor in obtaining approval is effective advocacy. If the facts are well presented and persuasively argued, a petition that meets the above criteria should be approved routinely.

What is the difference between O-1 and EB-1 Extraordinary Ability?
The requirements for O-1 visa are very similar to those for the EB-1 (Alien of Extraordinary Ability) employment based permanent residence category. The difference is that the O-1 standards apply to those seeking non-immigrant statuses, while the EB-1 standards are for those seeking immigrant statuses in the United States.

Who can file a petition to classify someone as an “Outstanding Professor or Researcher”?
Any United States employer desiring and intending to employ a professor or researcher who is outstanding in an academic field may file an I-140 visa petition for such classification.

In regard to “Outstanding Professors and Researchers”, what is the definition of Academic field?
The immigration regulations define “Academic Field” as a body of specialized knowledge offered for study at an accredited United States university or institution of higher education.

How does one prove “Outstanding Professor or Researcher”?
A petition for Outstanding Professor or Researched must be accompanied by evidence that the Professor or Researcher is recognized internationally as outstanding in the academic field in the petition.

In addition, petition should also include an offer of employment from a prospective United States employer.

Who can provide the “Offer of employment” for an Outstanding Professor or Researcher” petition?
The offer of employment must be in letter form from one of the following:

  1. A United States University or Institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien’s academic field;
  2. A United States University or Institution of higher learning offering the alien a permanent research position in the alien’s academic field;(Permanent, in reference to a research position, means either tenured, tenure track, or a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is a good cause for termination)
  3. A department, division, or institute of a private employer offering the alien a permanent research position in the alien’s academic field. The department, division, or institute must demonstrate that it employs at least three full-time research positions, and that it has achieved documented accomplishments in the academic field.

For the purposes of EB-1 Multinational Executive or Manager, what is essential to show qualifying relationship between Parent Company and Affiliates or Subsidiaries?
The most important factor in determining the existence of a qualifying relationship between parent company and a subsidiary and affiliate is ownership and control.

The immigration regulations define “Affiliate” as follows:

  1. One of two subsidiaries which are both owned and controlled by the same parent or individual;
  2. One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity;

How is “Executive Capacity” defined?
A title alone does not make a candidate eligible for Multinational Executive category. The candidate must be engaging in strategic planning and/or directing company’s major activities.

Alien employees working in an “Executive Capacity” should be able to prove that they will primarily:

  1. Direct the management of the organization or major component of function of the organization;
  2. Establish the goals and policies of the organization, component, or function;
  3. Exercise wide latitude in discretionary decision-making; and
  4. Receive only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

How is “Managerial Capacity” defined?
A title alone does not make a candidate eligible for Multinational Manager category. A first line supervisor is not considered to be acting in a Managerial capacity merely because he/she has supervisory duties.

Alien employees working in a “Managerial Capacity” should be able to prove that they will primarily:

  1. Manage the organization, or a department, subdivision, function, or component of the organization;
  2. Supervise and control the work of other supervisory, professional, or managerial employees, or manage essential function within the organization, or a department or subdivision of the organization;
  3. If another employee or 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 organization hierarchy or with respect to the function managed; and
  4. Exercise direction over the day-to-day operations of the activity or functions for which the employee has authority.

Who can provide the “Offer of employment” for a multinational executive or manager?
No labor certification is required for this classification. However, the prospective employer in the United States must furnish job offer in the form of a statement which indicates that alien will be employed in the United States in a “Managerial or Executive” capacity. All duties to be performed by the prospective alien employee must be clearly described.