EB-1 classification is an employment-based, first-preference immigrant petition for a foreign worker. The intent of the EB-1 immigrant petition is to provide a path to permanent residency to ‘priority workers’ who either possess extraordinary ability (EB-1A) or are outstanding professors and researchers (EB-1B) or are managers and executives of foreign companies who are transferred to the U.S. (EB-1C).
EB-1A Visas and Challenges
The EB-1A is an employment-based, first-priority immigrant petition classification that is intended for foreign nationals who possess extraordinary ability in the arts, athletics, business, education, or the science. EB-1A petitions are intended for foreign nationals who have risen to the top of their field, which the petitioner defines in consultation with an experienced attorney. Foreign nationals do not need a job offer to petition for this category and may self-petition. The foreign worker must be coming to the U.S. to continue to work in the field that he or she has identified at the field of extraordinary ability.
Defining Extraordinary Ability
The foreign national (or employer, if petitioning on behalf of an employee) must establish extraordinary ability as defined by the federal statute. The law states that the foreign national must show that they have received a major internationally recognized award, or that they must satisfactorily meet at least three of the following ten criteria:
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the identified field
- Evidence of membership in associations in the field which require outstanding achievement of their members
- Evidence of published material about the foreign national’s work in professional or major trade publications or other major media in the identified field
- Evidence that the foreign national has been asked to judge the work of others, either individually or on a panel in the identified field or a related field
- Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of the foreign national’s authorship of scholarly articles in professional or major trade publications or other major media in the identified field
- Evidence that the foreign national’s work in the identified field has been displayed at artistic exhibitions or showcases
- Evidence of the foreign national’s performance of a leading or critical role in distinguished organizations
- Evidence that the foreign national commands a high salary or other significantly high remuneration in relation to others in the field
- Evidence of foreign national’s commercial successes in the performing arts.
Final Merits Determination
In addition to meeting three of the ten listed criteria, the EB-1A petition must also meet a “final merits determination” by the USCIS examining officer. Merely meeting a minimum of three criteria is not sufficient to obtain EB-1A status. The officer must determine by considering the totality of the evidence if the foreign national meets the general definition of EB-1A: that they are at the very top of their field of extraordinary ability. Only after the USCIS examining officer concludes that the foreign national has met both the minimum individual criteria as well as the final merits determination will the EB-1A classification be approved.
EB-1B Visas and Challenges
EB-1B is an employment-based, first-priority classification that is intended for foreign nationals who can demonstrate that they are internationally recognized as an outstanding professor or researcher in a specific field of expertise. The foreign national must have at least three years of experience of teaching and research in the specific area of expertise and must have an offer of ongoing employment with a sponsoring employer. Self-petitioning is not permitted for the EB-1B classification. For academics, they must be entering the U.S. to pursue tenure or tenure track teaching at a university, institution of higher education, or a private employer. No labor certification is required for EB-1B petition.
Demonstrating “Outstanding” Ability as a Professor or Researcher
The foreign national must establish that they are an outstanding professor or researcher by meeting two of the following six criteria:
- Evidence of receipt of major prizes or awards for outstanding achievement in the identified field
- Evidence of membership in associations that require their members to demonstrate outstanding achievement in the identified field
- Evidence of published material in professional publications written by others about the foreign national's work in the academic field
- Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
- Evidence of original scientific or scholarly research contributions in the field
- Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
Final Merits Determination
Like the EB-1A, once the USCIS examining officer has determined that the foreign national has met at least two of the above-listed criteria, he or she will then adjudicate the totality of the evidence to decide whether the applicant has met the level of an internationally recognized “outstanding” researcher or professor. Meeting the minimum two of the six criteria is, in itself, not sufficient to establish EB-1B eligibility. Only after the USCIS examining officer concludes that the foreign national has met both the minimum individual criteria as well as the final merits determination will the EB-1B classification be approved.
EB-1C Visas and Challenges
EB-1C is an employment-based, first-priority immigrant petition classification that is intended for multinational executives and managers who are seeking to come to work in the U.S. for the same organization or the foreign entity of the company with whom they are employed overseas. Foreign nationals cannot self-petition for the EB-1C classification. Employers must petition the USCIS on behalf of the foreign national.
Foreign national requirements
- The foreign national must have been employed outside the United States for at least one (1) year in the three (3) years preceding the petition or the most recent lawful nonimmigrant admission if the foreign national is already working for the U.S. petitioning employer.
- The foreign national must also qualify as a manager or as an executive according to U.S. government regulations.
Qualifications of a Manager
As defined by U.S. law, a manager is someone who:
- Manages a corporation, department, subdivision, or function.
- Supervises and controls the work of other supervisory, professional, or managerial employees, or manages essential functions of their department, subdivision, or organization.
- Has the authority to make personnel decisions including hiring and firing, or else function at a senior level with respect to their department or function, and
- Exercises discretion over the day-to-day operations of the activity or function for which he or she has authority.
Qualifications of an Executive
As defined by U.S. law, an executive is someone who meets the following requirements:
- The person must manage an organization, major component, or function.
- The person has the authority to establish goals and policies of the organization, component, or function.
- The person has wide latitude and discretionary decision-making authority, and
- The person receives only general supervision from higher executives, boards of directors, or stockholders.
- The prospective employer in the United States must be the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the foreign national was employed abroad.
- The U.S. petitioning employer must have been doing business for at least one (1) year, have a qualifying relationship to the entity that the foreign national worked for outside the U.S., and intends to employ the foreign national in a managerial or executive capacity.
- The U.S. petitioning employer must be able to demonstrate a continuing ability to pay the offered wage as of the priority date. The U.S. employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay the offered wage.