Man bearded laborer hold american flag

Introduction

There are a range of ways in which aliens (foreign citizens) can apply for a visa to work in the United States. One example is through investment visas (through the E-2 visa immigration process). Another way is through the EB-1 visa process. The US Citizenship and Immigration Services, a division of the US Department of Homeland Security, authorizes EB-1 visas for immigrants who have unique qualifications such as extraordinary skills, unique academic and research skills, or special supervisor and managerial skills.

8 U.S. Code § 1153 (Allocation of immigrant visas): offers a worldwide level of employment-based immigration visas. This number is 140,000 plus an additional number based on the year and how many visas were granted in previous years. No more than 3, 133 can seek E1-visa status for any one country, according to the US State Department.

Other sections of the statute provide additional qualifications on the number of visas that can be granted for all types of visas including EB-1 visas.

EB-1 Visas are desirable for several reasons

An immigration lawyer can explain the benefits of EB-1 vias. The main benefits are:

  • The EB-1 process is generally simpler and less timely than other vias processing methods.
  • EB-1 applicants don’t need to prove they meet the labor certification test. Labor certification is the process that employers must meet to show there aren’t any qualified employees in the US who can do a job. The uniqueness and difficulty of the EB-1 criteria is hard enough, in essence, to show the US would benefit from the EB-1 applicant’s talents.
  • Applicants don’t need to show they have an existing job offer to qualify for an EB-1A visa. The applicant can file the petition on his/her own instead of through an employer.

The main requirement is showing that the foreign applicant can meet one of the three basic criteria:

  1. Extraordinary skills
  2. Outstanding Professor or researcher
  3. Specific Multinational Executive and Managerial Criteria
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Extraordinary successful employee was awarded for his excellent skills

EB-1A Visa: Extraordinary Skills

Section A, the statutory basis for EB1-A visas, permits foreigners to seek American visas if they meet the worldly visa limit and if they have “extraordinary skills” “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.”

In addition to proving thy have the requisite extraordinary skills, the applicant who seeks to work in the field in which they have extraordinary skills must continue to work in the US in the field. The person who has the skills must intend to use those skills. Someone with out of the ordinary physics skills, for example, can’t seek to work as a construction worker through the E1-A visa application process.

The alien must also be seeking the visa to do work which will “substantially benefit prospectively the United States.”

The alien seeking an EB-1A visa, unlike the EB1-B and EB1-C visas, does not have to show that he or she has a current offer of employment. This means the foreigner can file a petition on his/her own. There’s no need to have a sponsor file a petition for the foreigner.

The applicant must meet 3 or more of the 10 criteria required by the USCIS. Alternatively, the applicant for an E-1A vias may qualify if they have a one-time achievement such as a Pulitzer Prize, a movie Oscar, or an Olympic medal.

The USCIS states that that the following documentation, by itself, is not enough to establish the requirement for extraordinary skills:

  • Having a degree, diploma, certificate or comparable award from a university, college, school, or other institution of learning
  • Having a license to practice or certification to practice for a specific occupation or profession
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Medical Healthcare Researcher

EB-1B Visa: Outstanding Professor or Researcher

Section B, the statutory basis for EB1-B visas, permits aliens to seek entry into the US if the alien is an “Outstanding professor or researcher.” This section/visa type requires that the foreigner:

  • Be recognized internationally for outstanding work in a specific academic area.
  • Have at least three years experience “in teaching or research in the academic area and wants to come to America:
    • “For a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area.”
    • “For a comparable position with a university or institution of higher education to conduct research in the area” or
    • “For a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.”
  • Applicants for this visa must have documentation showing he or she meets at least two of the required criteria for this category. Applicants for the E1-B visa must also show that they do have a current offer of employment from a prospective U.S. employer.
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Executive Black Woman

EB-1C Visa: Specific Multinational Executive and Managerial Criteria

Section C, the statutory basis for EB1-C visas, permits aliens to seek entry if they meet specific multinational executive and managerial criteria. This criteria requires:

  • That in the three years prior to the alien’s application for this type of visa that the applicant:
    • “Has been employed for at least 1 year by a firm or corporation [outside of the US] or other legal entity or an affiliate or subsidiary thereof [outside of the US] and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.”
    • Applicants for the E1-C visa must have a sponsor who qualifies as a US employer. According to the USCIS, “our employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed you abroad.

Criteria for Demonstrating Extraordinary Ability

Applicants for the E1-A visa must have documentation go show the applicant meets 3 out of 10 of the following criteria – to establish they have extraordinary ability in your field, according to the USCIS:

  • “Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field, which require outstanding achievements as judged by recognized national or international experts
  • Published material about the alien in professional or major trade publications or other major media
  • Participation on a panel or individually as a judge of others’ work in the field or a related field
  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in the field in professional or major trade publications or other major media
  • Display of the alien’s work at artistic exhibitions or showcases
  • Evidence the alien has performed in a leading or critical role for organizations or establishments that have distinguished reputations
  • Evidence the alien has commanded a high salary or other significantly high pay for services; or
  • Evidence of commercial successes in the performing arts as shown by box office receipts or music or video sales.”

Applicants who can’t provide the above evidence may be allowed to submit comparable evidence. The applicant should also be able to show that he/she is coming to the United States to continue work in the area of expertise.

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3D illustration of "DOCUMENTARY EVIDENCE" title on legal document

Examples of Documentary Evidence That A Person is an Outstanding Professor or Researcher

Applicants for the E1-B visa must have documentation go show the applicant meets 2 out of 10 of the following criteria – to establish they are an outstanding professor or researcher, according to the USCIS:

  • “Evidence the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Include at least two of the following:
    • Receipt of major prizes or awards for outstanding achievement in the academic field
    • Membership in associations in the academic field that require outstanding achievements of their members
    • Published material in professional publications written by others about the alien’s work in the academic field
    • Participation on a panel or individually as the judge of others’ work in the same or a related academic field
    • Original scientific or scholarly research contributions to the academic field; or
    • Authorship of scholarly books or articles in scholarly journals with international circulation in the academic field.
    • If the above standards do not readily apply to the alien’s occupation, you may submit comparable evidence.
  • Evidence the alien has at least three years of experience in teaching and/or research in the academic field
  • If you are a university or other institution of higher education, an offer of employment in the form of a letter indicating that you intend to employ the alien in a tenured or tenure-track position as a teacher or in a permanent position as a researcher in the alien’s academic field
  • If you are a private employer:
    • An offer of employment in the form of a letter indicating you intend to employ the alien in a permanent research position in the alien’s academic field
    • Evidence you employ as least three full-time researchers (other than the beneficiary); and
    • Evidence you have achieved documented accomplishments in an academic field.”
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Managerial skills (human skills, technical skills, conceptual skills)

Managerial capacity

According to 8 U.S. Code § 1101, Section 44, the phrase “managerial capacity” means “an assignment within an organization in which the employee primarily:

  • (i) manages the organization, or a department, subdivision, function, or component of the organization;
  • (ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
  • (iii) 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 organizational hierarchy or with respect to the function managed; and
  • (iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.”

All four parts of the above list of requirements must be met for managerial capacity approval.

A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professionals.

Executive capacity

According to 8 U.S. Code § 1101, Section 44, the phrase “executive capacity” means “an assignment within an organization in which the employee primarily:

  • “(i) directs the management of the organization or a major component or function of the organization;
  • (ii) establishes the goals and policies of the organization, component, or function;
  • (iii)exercises wide latitude in discretionary decision-making; and
  • (iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.”

“If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.”

“The term “organization” means, but is not limited to, an organization, corporation, company, partnership, association, trust, foundation or fund; and includes a group of persons, whether or not incorporated, permanently or temporarily associated together with joint action on any subject or subjects.”

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Form I-140

How to Apply for an EB-1 Visa

The first step in the EB-1 application process is to file Form I-140.

Skilled immigration lawyers will help you prepare the form and submit all relevant documentation. In addition, the immigration lawyer will also help prepare you for the interview which is generally required for EB-1 visa applicants.

The applicant can self-file or file through an employer. The basic steps, according to the USCIS, are:

For applicants seeking approval based on extraordinary ability, there is no requirement to show there is an offer of employment. Applicants based on extraordinary ability may be eligible to file the Adjustment of Status Form I-485 concurrently or after the filing of Form I-140 – if they are legally in the United States.

What happens after you apply

The USCIC will review your Form I-140 application. They will:

  • Send you a receipt notice
  • Send you a notice for Biometrics appointment, and
  • Send you a notice of the decision in writing

After your petition is approved and you have a current priority date, you can then apply to become a Legal Permanent Resident. To become a Legal Permanent Resident, you need to either:

  • File I-485. This form is generally used if the applicant is in the US, the visa is available, and the applicant is in a legal status. This process is called an adjustment of status.
  • Apply through a consulate. Applicants outside of the US will need to use the consulate method. This process is called “consular processing.”

If you are in the United States, you can either file a Form I-485 or apply through the consulate. If you are outside of United States, you should apply through the consulate. Applicants need to check the US State Department Visa Bulletin to determine if their visa is current – there are open visas which can be assigned to the applicant.

Additional statutory issues for E1 visas

The requirements for an EB-1A for a foreigner who works in the sciences, arts, professions, or business sought by a US employer can be waived by the Attorney General if the Attorney General deems the waiver in the in the national interest.

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