Achieve Your American Dream with EB-1 Immigrant Work Visa

Employment-based immigration is divided into pre-established preference categories, each of which is allocated a percentage of all available work-related immigrant visas.  The First preference category is called “Employment-based First Preference,” or “EB-1 Immigrant Work Visa” and it consists of three (3) subcategories: (A) Persons of Extraordinary Ability; (B) Outstanding Professors and Researchers; and (C) Multinational Executives and Managers. These will be dealt with in turn.

Persons of Extraordinary Ability in the Sciences, Arts, Education, Business or Athletics

This immigrant visa the EB-1 Immigrant Work Visa is available to noncitizens with extraordinary ability in the sciences, arts, education, business or athletics, as demonstrated by sustained national or international acclaim, whose achievements in the field have been recognized in the field. The applicant must demonstrate that he or she will continue to work in the area of extraordinary ability, and must show that his or her entry will substantially benefit the U.S. in the future.

The EB-1 Immigrant Work Visa is a Relatively Fast Immigrant Work Visa

An enormous advantage to the EB-1A is that no employer is needed in order to apply. A qualifying individual may apply for the EB-1A without an employer-sponsor, provided the applicant intends to pursue work in the United States in the area of expertise. In addition, no labor certification is required in order to qualify for the EB-1A. Thus, for qualifying individuals, the EB-1A is an efficient and relatively fast immigrant visa.

That being said, the requirements for the EB-1 Immigrant Work Visa are rather lofty. It is noteworthy that notes on the legislative intent of this employment-based visa category make it clear that it is intended “for the small percentage of individuals who have risen to the very top of their field of endeavor.” Accordingly, the elements of proof of the applicant’s “sustained national acclaim” are stringent. 

Evidence of sustained national or international acclaim may consist of a one-time achievement such as a major internationally recognized award like the Nobel Prize; OR documentation of any three (3) of the following ten criteria:

• Receipt of lesser nationally or internationally recognized prizes or awards (generally not including awards to students).
• Membership in an association in the applicant’s area of expertise which requires outstanding achievement of their members, as determined by recognized national or international experts in the field.
• Professional, major trade publications, or major media writeups about the applicant’s work. This type of evidence may consist of written news articles or a transcript of audio or video coverage concerning the applicant.
• Participation as a judge of others’ work in the field. Here, the petitioner/applicant must show not only that he or she has been invited to judge the work of others, but that the petitioner/applicant did, in fact, participate in judging the work of others in the same or related field of specialization.
• Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance. This element will normally require substantial expert evidence in the form of letters explaining the significance of the applicant’s work to the field.
• Authorship of scholarly articles in the field of expertise. This will include publications in professional peer-reviewed journals and national or international conference presentations that have been published.
• Artistic exhibitions.
• Acting in a leading role for organizations or establishments that have a distinguished reputation.
• Evidence of high remuneration or salary as compared to others in the field.
• Commercial success in the performing arts.

It is possible in some cases to submit alternative comparable evidence of an applicant’s eligibility for this visa category. (There is some dicta in court decisions that limits the availability of such alternative comparable evidence to situations in which one or more of the standard criteria were not applicable to the field in question.)

Outstanding Professors and Researchers

The EB-1B is for outstanding professors and researchers. To qualify, an applicant must:

• Demonstrate international recognition as outstanding in a given academic field. This applicant is one who stands apart in the academic community in terms of the distinction of his or her work, as established through international recognition.
• Have a minimum of three (3) years’ experience in teaching or research in his or her field. Experience gained while working on an advanced degree may count if the degree is acquired, the applicant had full responsibility for the class taught, or the research has been recognized as outstanding in the field.
• Seek entry for and be offered employment as (1) a tenure or tenure-track teaching position at a university or institution of higher learning; (2) a comparable research post; or (3) a comparable position with a private employer that employs at least 3 full-time researchers and the institution has achieved a measure of documented accomplishments in a given academic field.

Research positions, where not tenured, may be a “permanent offer,” meaning one of indefinite duration that is expected to continue unless there is good cause for termination.

The EB-1B requires an offer of employment, but it does NOT require a labor certification.

Evidence

Evidence of the professor or researcher’s international recognition as outstanding in his or her field must consist of at least two (2) of the following:

• Receipt of major prizes or awards for outstanding achievement (evaluated in terms of criteria for granting the award or prize; size of pool of other recipients; and number of other recipients);
• Membership in an association that requires outstanding achievement (such as being invited to be a fellow of an elite academic fellowship, where the basis for such invitation for membership is outstanding achievement);
• Articles and other published material by others about the applicant’s work. This must address the beneficiary’s work, and not that of the employer. This element must also include evidence of circulation or viewership of the publication as well as title, date and author;
• Evidence of the person’s participation as a judge of the work of others in the field;
• Evidence of original scientific research that makes some original scientific or scholarly contribution to the academic field (and not just to the applicant);
• Authorship of scholarly books or articles in the field.

Comparable evidence, where relevant, may be considered.

While no labor certification is required, the employer must tender a formal offer of employment in the form of a letter setting out terms, title, and conditions of employment. The employer must demonstrate an ability to pay the offered wage at the time of submission and continuing.

EB-1 Immigrant Work Visa for Multinational Executives and Managers

This immigrant visa category is very similar to the L-1A and often succeeds the L-1A in converting that nonimmigrant visa category to an immigrant visa category. The requirements for the L-1A and the EB-1C are strikingly similar.

To qualify, an EB-1C applicant must:

• ave been employed for at least one out of the past three years (before applying) abroad by a “firm or corporation or other legal entity or an affiliate or subsidiary thereof” (this requirement is deemed met even if the beneficiary is in the US more than 3 years if he or she worked for the same overseas parent or affiliate for at least one of the last three years before entering the US);
• Demonstrate that a parent/subsidiary or affiliate relationship exists between the overseas parent company and the U.S. concern that will employ the beneficiary;
• The U.S. entity maintains a qualifying relationship with the foreign entity, and the foreign entity is expected to continue to exist as of the time of filing for the EB-1C;
• Beneficiary seeks to enter the U.S. in order to continue to render services to the same employer, subsidiary or affiliate, in a managerial or executive capacity. Here, “managerial capacity” refers to duties that involve managing the organization, department, subdivision, function or component of the organization, supervises and controls the work of other supervisory, professional (with a 4 year degree), or managerial employees OR manages an “essential function” of the organization; has hiring and firing authority and/or functions on a senior level; and exercises discretion over day-to-day operations of the activity or function. First-line supervisors normally will NOT meet the definition of a manager unless he/she supervises professionals (i.e., persons who possess a four-year degree). “Executive” capacity means a position in which the employee primarily directs the management of the organization (or a component or function); establishes goals and policies; makes discretionary decisions, and receives only general supervision or direction from higher level operatives like a board of directors.
• The U.S. arm of the organization must have been doing business in the United States for at least one year; and foreign entity must continue to operate going forward; and receive an L-1A to operate the startup for its first year. Before the expiration of that first year, the entrepreneur can renew his/her L-1A for an additional two years and, in the interim, apply for an EB-1C. This has proven to be an excellent method for enterprising foreign business owners to establish a permanent foothold here in the United States for themselves and their families.