An Employment based First Preference Immigration petition (EB-1) is an immigration petition for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports.
There are three (3) types of EB-1 petitions:
- Alien of Extraordinary Ability (EB-1A Visa)
- Outstanding Researcher/Outstanding Professor (EB-1B Visa)
- Managers and Executive Transferees (EB-1V Visa)
The most notable advantage for those who qualify for an EB-1 petition is the waiver of a Labor Certification requirement in the Green Card process. Another advantage is that visa numbers are almost always current for the EB-1 application category. This means that an alien will not have to wait for visa numbers to become available before applying Adjustment of Status (I-485) and receiving a Green Card. Furthermore, the applicant can file other immigration petitions under other appropriate categories (such as National Interest Waiver) while an EB-1 petition is pending.
Obtaining a Labor Certification is a time-consuming and expensive process that seeks to determine whether sufficient able, willing, and qualified U.S. workers are available to fill the position sought by the alien. In addition to the time and expense of the Labor Certification process, an alien risks being denied a Labor Certification if any U.S. workers with the minimum technical qualifications for the employment is found (even if the alien is actually more suitable for the position based on factors not considered in the Labor Certification process).
In an EB-1 petition, Labor Certification is not required at all. For aliens with extraordinary ability (EB-1A petition), a permanent job offer is not required, nor do applicants have to demonstrate that they have an employer in the U.S. they only have to demonstrate that they will keep working in the field in which they have the extraordinary abilities, EB-1A applicants may file an immigration petition on behalf of themselves. However, EB-1B and EB-1C petitions require permanent job offers. In other words, a U.S. employer must be the petitioner for EB1B or EB1C cases.
Alien of Extraordinary Ability (EB-1A)
An Alien of Extraordinary Ability, or EB-1A, classification applies to aliens who can demonstrate that they "have risen to the very top of their field of endeavor." Such candidates may apply for EB1A petition without a labor certification or a job offer (i.e. an employer’s sponsorship).
Any alien living in the U.S. or abroad may apply if he/she meets the following requirements:
- Alien has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.
- Alien’s achievements have been recognized in the field through extensive documentation.
To establish that the alien is a top member within his/her respective field, evidence of receipt of an internationally recognized award such as the Nobel Prize or an Academy Award is accepted. However, in the absence of an internationally recognized award, the alien can establish him/herself as an Alien of Extraordinary Ability by providing documentation of any three (3) of the following:
- Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
- Membership in associations which require outstanding achievements of their members, as judged by recognized national or international experts in their fields;
- Published material in professional/major trade publications or major media about the alien and relating to the alien's work field;
- Participation as a judge (individually or as a part of a panel) evaluating the work of others;
- Original scientific, scholarly, or artistic contributions of major significance;
- Authorship of scholarly articles in professional journals or other major media;
- Artistic exhibitions/shows;
- Leading role within an organization/establishment with a distinguished reputation;
- High salary/compensation for services in comparison to others; or
- Commercial success within the performing arts, as shown by either box office receipt figures or cassette, compact disk, video, or DVD sales figures.
The alien must also show that his/her admittance into the United States will substantially benefit the United States in the future. Additionally, the alien must prove that he/she will continue to pursue work in the area of extraordinary ability in the U.S. and prove that his/her work is of substantial and prospective benefit to U.S. national interest. Procedurally, the EB-1A is an I-140 Immigration Petition, Petition for Alien Worker application. The alien may petition for him/herself by filing For I-140 with supporting documentation that demonstrates that the alien meets fundamental EB-1A criteria. The petition is one of the fastest ways to obtain a Green Card. An EB-1A candidate may petition for his/her own permanent residency without the need for an employer sponsor, as is generally required in employment-based petitions.
Approved Case Example:
Dr. Lee received her Ph.D. from China. Her work lies in composite materials, a subset of civil engineering that can prospectively benefit the U.S. economy, U.S. citizens and the U.S. military. Her accomplishments have brought her national recognition and she is considered one of the top engineers within her field. Dr. Lee frequently participates as a judge of other's work by providing reviews for scholarly journals and has authored several articles in scholarly journals of international circulation.
Dr. Lee qualifies as an Alien of Extraordinary Ability because she has risen to the top of the civil engineering field. She does not need an employer's sponsorship as long as she can establish that she will continue to pursue her work within the U.S.
Outstanding Researcher or Professor (EB-1B)
An "Outstanding Researcher or Professor" EB-1B immigrant visa is for aliens who are internationally recognized as outstanding in a particular scientific or scholarly field. Unlike self-petitioned EB-1A cases, EB-1B cases are employer sponsored. This means the petitioning employer must demonstrate that the alien has outstanding ability as a researcher or professor and has a permanent job offer from the employer. The outstanding researcher/professor alien must have the sponsorship of his/her employer throughout the petitioning process. The employer is the petitioner and the outstanding researcher/professor is the beneficiary for the EB-1B process.
There are three (3) main requirements for someone seeking a petition as an "Outstanding Researcher/Professor", including:
- International recognition for being outstanding in a specific academic field;
- At least three years of relevant research or teaching experience: Research or teaching experience obtained while in pursuit of an advanced degree, such as a Ph.D., can be counted toward the three year requirement, but only if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. The alien must document his or her work history with letters from current and/or former employers describing work duties and years of employment; and
- A job offer for a permanent research position or a tenured or tenure-track teaching position from the sponsoring employer: Generally, the job offer is given by a university or other similar academic or scientific institution, but it can also be offered by a private employer. If the offer is from a private employer, the employer must have at least three full-time researchers along with accompanying documentation supporting their accomplishments within the field.
Dr. Jones has been offered a tenure track teaching position as an Associate Professor of Music at an East Coast University. He is internationally recognized as an outstanding professor in the field of music education, and has been teaching and researching in this field for more than three years.
Dr. Jones qualifies as an "Outstanding Professor" since he is internationally recognized within his field, has at least three years of relevant teaching experience, and has been offered a permanent teaching position.
Dr. Gillon has been working in the field of biomedicine for more than 10 years. He has been offered a permanent research position as a postdoctoral associate at a medical university. He has made original contributions to the field of cartilage development, and professional articles have been published regarding his work. He is internationally recognized as an outstanding researcher in the field of biomedical science.
Dr. Gillon qualifies as an "Outstanding Researcher" since he has at least three years of relevant research experience, has been offered a permanent research position, and has an outstanding reputation within his field.
A permanent job offer is one where the employee has a reasonable expectation of future employment. As a general rule, all job offers are considered permanent job offers, with the exception of contract positions that specify a particular duration for employment. Part-time jobs are considered permanent job offers provided there is no fixed termination date.
As with all employment-based first preference petitions, no Labor Certification is required to obtain an EB-1B immigrant visa. However, the person seeking permanent resident status on the basis of an EB-1B Outstanding Researcher/Professor classification must have the requisite job offer with the sponsoring employer that is filing the petition on the alien's behalf.
To be recognized internationally as an Outstanding Researcher or Professor in one’s field requires at least two (2) of the following types of evidence:
- Receipt of major prizes or awards for outstanding achievement;
- Membership in associations which require outstanding achievements of their members;
- Published material in professional publications written by others about the alien's work (more than merely citing the alien's work);
- Participation as a judge (individually or as a part of a panel) evaluating the work of others in the same field or concentration; or
- Original scientific, scholarly, or artistic contributions in the field.
- Evidence of authorship of scholarly books/articles in journals with an international circulation.
EB-1C: Managers and Executive Transferees
The EB-1C immigrant category is among the visas in the First Preference category. A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports. Immigrant visa numbers are immediately available under the EB-1 category. The first preference category is allotted 40,000 annual immigrant visas. To obtain an EB-1 status, the beneficiary may apply for Adjustment of Status, if they are already in the United States, or through consular processing at a U.S. consular office abroad.
A specific employment-based immigrant preference category (EB-1C) was created for managers and executives who meet the L-1A non-immigrant standards and are interested in becoming lawful permanent residents. L1-A status is offered to those intercompany executive or managerial transferees that will be coming to the United States only temporarily. Therefore, the major difference between L-1A and EB-1C is the permanent nature of the EB-1C visa. Although L-1A status is not a prerequisite for immigrant benefits in this category, an immigrant petitioner will have a stronger case for the EB-1C immigrant category if they were in L-1A status prior. However, we have successfully worked with many clients who have applied for EB-1C status without ever having obtained L-1A status.
The EB-1C visa is a good way for small or start-up overseas companies to expand their business and services to the United States. This is advantageous to smaller companies because its allows for the transfer of a highly proficient manager or executive employee who has direct knowledge of the company’s operations, allowing the setup of a new branch in compliance with the goals and objectives of the company’s main office.