Form I-485 Instructions – Step By Step Guide

Applicants who are legally in the US can seek permanent residency status if they are approved for an adjustment of their status. Form I-485 is used to file for Adjustment of Status. The core requirements for this form are established by the USCIS as follows:

The eligibility requirements for an adjustment of status vary depending on which immigration category (such as EB-1A, EB-1B, or EB-1C), you are seeking. Applicants must be physically present in the US to file Form I-485. Otherwise, they typically need to use consular processing.

Principal and Derivative Applicants

Someone who applies as the person “who directly qualifies for an immigrant category” is considered the principal applicant. Family members of the principal applicant are considered derivative applicants.

The principal applicant must indicate which category – such as EB-1 A, B, or C – they are seeking approval for and must comply with all corresponding requirements.

Derivative applicants must apply for an adjustment of status based on the same immigrant category the principal applicant seeks approval for.

When You Should File Form I-485?

Principal applicants, who file Form I-140 (for EB-1) approval, “may file an adjustment application only after USCIS has approved your petition and an immigrant visa number is immediately available,” unless concurrent filing is allowed. Your immigration lawyer can explain if you can file Form I-140 and Form I-485 at the same time. At a minimum, a visa number must be immediately available.

Derivative applicants seeking an adjustment of status cannot seek Form I-485 approval “until the principal applicant has been granted lawful permanent resident status.”

“If you are currently the spouse or child (unmarried and under 21 years of age) of a principal applicant, you may file Form I-485 if an immigrant visa is immediately available to you and you meet all the filing requirements. You may file at any of the following times:

1. “At the same time, the principal applicant files Form I-485
2. After the principal applicant filed a Form I-485 that remains pending a final decision by USCIS
3. After USCIS approves the principal applicant’s Form I-485, if the principal applicant is still a lawful permanent resident and if, at the time of the principal applicant’s Form I-485 approval, you were the principal applicant’s spouse or child
4. After the principal applicant obtained an immigrant visa and entered the United States as a lawful permanent resident if the principal applicant is still a lawful permanent resident and, at the time of the principal applicant’s entry, you were the principal applicant’s spouse or child”

What Evidence Must be Submitted with Form I-485?

The evidence may vary depending on your category and other factors. Some of the information you may need to supply includes:

1. Photographs. Generally, two “recent identical color passport-style photographs”
2. Government-Issued Identity Documents with Photograph. Examples include a passport, a driver’s license, and a military ID
3. Birth Certificate. “USCIS will only accept a long-form birth certificate which lists at least one parent.” If the birth certificate isn’t available, then a suitable explanation must be provided.
4. Inspection and Admission or Inspection and Parole. “Unless applying under INA section 245(i), most Form I-485 applicants must submit photocopies of documentation showing they were inspected by an immigration officer and either admitted or paroled into the United States. “
5. Documentation of Your Immigrant Category. This information will normally include the information on your I-140 Form or approval of your I-I140 request. [I think?]
6. Marriage Certificate and Other Proof of Relationship. Derivate applicants who are spouses must attach a proper photocopy of their marriage certificate.
7. Evidence of Continuously Maintaining a Lawful Status Since Arrival in the United States – may be required.
8. Affidavit of Support/Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section – unless a job offer is not required.
9. Evidence of Financial Support. “In general, you must demonstrate that you are not likely to become a public charge.”
10. Report of Medical Examination and Vaccination Record (Form I-693). “Form I-485 applicants for adjustment of status are required to have a medical examination to show that they are free from health conditions that would make them inadmissible.”

Form I-140 Instructions, Immigrant Petition for Worker

The USCIS provides 11 pages of instructions on how to complete an Adjustment of Status request through the filing of Form I-140. Foreign applicants who seek an approval of EB-1 status based on extraordinary skills (EB-1A), outstanding professor or researcher (EB-1B), or multinational supervisor or managerial criteria (EB-1C) must file Form I-140. An experienced immigration lawyer can guide you through the form, the instructions, and all related criteria.

General instructions for Form I-140

Some of the basic requirements for completing Form I-140 are:

Signature

Each petition must be properly signed and filed. For all signatures on this petition, USCIS will not accept a stamped or typewritten name in place of a signature.” Only an officer or an employee who knows the facts asserted in the petition (and who has the authority to sign legal forms) can sign on behalf of a corporation or other legal entity. Signatures can include photocopies, faxes, or scanned copies of the original document (with the original ink signature).

Filing Fee

The Form/Petition must have the required filing fee.

Evidence

EB-1 applicants must submit all evidence and supporting documentation (according to the checklist of requirements) for each category of EB-1 visa – A, B, or C.

Biometric Services Agreement

The applicant must acknowledge they understand the USCIS may require that the applicant appear to be interviewed and to be asked to provide their fingerprints, have a photo taken, and provide their signature – to verify their identity and to “conduct background and security checks, including a check of criminal history records maintained by the Federal Investigation (FBI), before making a decision on your application or petition.

Copies

“You should submit legible photocopies of documents requested, unless the Instructions specifically state that you must submit an original document. USCIS may request an original document at the time of filing or at any time during processing of an application or petition.”

Original documents

If original documents are requested and supplied, the original documents will be returned after the USCIS determines it doesn’t need them anymore. If you supply original documents that were not requested, the applicant should understand that those documents may not be returned, instead they may be destroyed.

Translations

“If you submit a document with information in a foreign language, you must also submit a full English translation. The translator must sign a certification that the English language translation is complete and accurate, and that he or she is competent to translate from the foreign language into English. The certification must include the translator’s signature. The Department of Homeland Security (DHS) recommends the certification contain the translator’s printed name, the signature date, and the translator’s contact information.”

Additional Form I-1401 requirements

The form should be typed or printed legibly in black ink.

There are many other requirements to complete Form I-1410 that must be included such as

• Meeting the specific checklist criteria for each sub-category – extraordinary skills (EB-1A), outstanding professor or researcher (EB-1B), or multinational supervisor or managerial criteria (EB-1C).
• Information about a spouse or any minor dependents who will be coming with you.
• Information about a job offer – unless the applicant is seeking a visa based on “Extraordinary Ability.” This information may include tax and Social Security numbers
• An arrival-departure record.
• The filing fee.
• Other criteria depending on your EB-1 category and other immigration requirements.

How to Check Your Place in The Visa Queue and the Definition of Concurrent Filing?

How to Check Your Place in The Visa Queue

Applicants who have filed a Form I-485 Adjustment of Status can check their place in the visa priority queue through the Visa Bulletin. The Visa Bulletin provides the most recent date for when a visa number is available for the different categories and countries for family-sponsored, employment-based and diversity (lottery) visas.

In order to obtain your visa to become a lawful permanent US resident, the vias must be available. Since more immigrants seek permanent lawful resident status than the Department of State grants visas, the government sets up a waiting list, called a visa queue. The amount of time applicants need to wait- even if they have been approved for an EB1-A, EB1-B, or EB1-C visa (whether they are seeking consular processing or a Form 1-485 adjustment of status) depends on:

• Their priority date
• The category of preference
• The country the applicant is from

“If the demand for immigrant visas is more than the supply for a particular immigrant visa preference category and country of chargeability, DOS considers the category and country “oversubscribed” and must impose a cut-off date to keep the allocation of visas within the statutory limits.”

Applicants for permanent legal resident status based on an EB-1 visa can seek permission to enter the US only when their priority date is earlier (or current) with the cut-off date for their category of preference and country – according to the “applicable chart in the Visa Bulletin.”

For example, if the Visa Bulletin shows a cut-off date of March 1, 2020 for China in the EB-1A preference category, then applicants who have a priority date prior to March 1, 2020 can proceed with their request for a Green card.

If the combination of preference category and country are such that more vias are available than there are applicants, then the application is considered current – and thus “available to all qualified adjustment of status applicants and overseas immigrant visa applicants in that particular preference category and country of chargeability.”

“C” in the Visa Bulletin indicated Current. “U” in the Visa Bulletin indicates Not currently available.

How to Check Your Place in The Visa Queue?

Concurrent Filing

Some Form I-140 applicants may be able to file their Form I-145 concurrently – instead of waiting for approval Form I-140 and then filing Form I-145

“You may concurrently file your Form I-485 only when approval of the underlying immigrant petition would make a visa immediately available to you. If you are an immediate relative, you can always concurrently file your Form I-485 application with the underlying Form I-130.”

EB-1 applicants can file concurrent forms only if:

• “Your priority date is earlier than the cut-off date listed in the “Application Final Action Dates” chart in the monthly Visa Bulletin for your preference category and country of chargeability;
• The Visa Bulletin chart indicates “C” instead of a specific cut-off date, meaning that your preference category and country of chargeability is current and that you may file Form I-485 regardless of the priority date; or
• When permitted by USCIS, your priority date is earlier than the cut-off date listed in the “Dates for Filing Applications” chart for your preference category and country of chargeability.”

EB-1 Visa Priority Dates

The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued to aliens seeking to become lawful permanent residents (get a Green Card) each year.

There are no limits on immigration visas for “immediate relatives’ of US citizens – they’ re always available.

“Immediate relatives include:

• The spouses of U.S. citizens
• The children (unmarried and under 21 years of age) of U.S. citizens
• The parents of U.S. citizens at least 21 years old
• Widows or widowers of U.S. citizens if the U.S. citizen filed a petition before his or her death or if the widow(er) files a petition within 2 years of the citizen’s death.

There are numerical limits for family-sponsored and employment-based immigrant preference (including EB-1 visa) categories.

The limit number is set by the US Department of State. Employment-based visas are generally limited to 140,000 by year. “By statute, these annual visa limits may be exceeded when certain immigrant visas from the previous fiscal year’s allocation were not fully used.” Family and employment visas have sub-categories. A percentage of overall visa numbers is assigned to each sub-category. Additionally, “there are limits to the percentage of visas that can be allotted based on an immigrant’s country of chargeability (usually the country of birth).”

If the demand for visas is more than the number of available visas, in any given year and any given category or country, a waiting list (called a visa queue) is established. Distribution of visas, across all categories, is determined by “a prospective immigrant’s preference category, country of chargeability, and priority date. The priority date is used to determine an immigrant’s place in the visa queue.”

Immigrants can apply for an adjustment of status to obtain lawful resident status – if their priority date becomes available or current – and they are currently in the US. Immigrants who use consular processing must have an available or current priority date too.

How to Find your Priority Date?

“If you are a prospective immigrant, you can find your priority date on Form I-797, Notice of Action, for the petition filed on your behalf. The waiting time before receiving an immigrant visa or adjusting status depends on:

• The demand for and supply of immigrant visas.
• The per-country visa limitations.
• The number of visas allocated for your preference category.”

Priority Dates for Employment-Based Preference Cases

Immigrants seeking an employment-based visa (such as EB-1A, EB-1B, or EB-1C) visa will have their priority date set as follows:

• If “your preference category requires a labor certification from Department of Labor (DOL),” then the priority date is the date the LOL is accepted for processing by the DOL. “To preserve the priority date, the petitioner must file Form I-140, Immigrant Petition for Alien Worker, with USCIS within 180 days of the DOL approval date on the labor certification or else the labor certification is no longer valid.”
• If “your preference category does not require a DOL labor certification, then the priority date is the date USCIS accepts Form I-140 for processing to classify the sponsored worker under the requested preference category.

Generally, labor certification is not required for EB-1 visas.

EB-1 Visa: Adjustment of Status

All EB1A, EB1B, and EB1C visa immigration applicants must file a Form I-485, Application to Register Permanent Residence or Adjust Status after their initial petition is approved. Some applicants may be able to file their I-140 applicantion currently with their Form I-485 petition.

Applicants generally can’t file the Form I-485 petition until a visa is available for their immigration category. Visa availability issues should be reviewed with an experienced immigrant lawyer. Form I-485 is used to change the status of someone already legally in the United States. There may be other requirements in addition to the filing of Form-I485 and the appropriate fees.

What happens after you file Form I-485

The applicant will be scheduled for a biometric services exam at a local Application Support Center. At the exam, you will need to provide your fingerprints, have a photograph taken, and provide your signature. The notice for the biometric exam will include the date, time, and location. The biometric exam is used to verify the applicant’s identity and to “conduct required background and security checks.“

The applicant may also be required to attend an interview. If an interview is requested, the applicant will need to “appear at a USCIS office to answer questions under oath or affirmation regarding Form I 485.” The USCIS will notify the applicant of the location, date and time of the interview. Experienced immigration attorneys can explain what questions are likely to be asked and how to conduct yourself at the interview.

If you are asked to come to the interview, your spouse and dependents (if they are seeking entry into the US) should also be prepared to attend the interview. Applicants will need to bring “originals of all documentation submitted with the Form I-485 application. This includes passports, official travel documents, and Form I-94, regardless if they are expired.”

Common interview questions require applicants to explain why they have extraordinary skills or other qualification criteria and their plans for obtaining work and living in the US if the application is approved.

Additional evidence requests

After Form I-485 is filed, the USCIS may ask for additional evidence if:

• You did not submit all the required evidence
• The evidence you submitted is no longer valid
• The officer needs more information to determine your eligibility.

The USCIS will advise you what evidence is needed, where to send the evidence and the due date for sending the evidence. Applicants who don’t submit the evidence in a timely manner may find that their Form I-485 request for adjustment of status is denied. Not every applicant is required to submit additional evidence. It helps to be thorough when submitting the initial form and document information.

The USCIS decision

Applicants can check their status online or by calling the USCIS Contact Center. The USCIC will make a decision on your application for an adjustment of your immigration status and advise you through a written notice. If the application is approved, “you generally will receive an approval notice first and then receive your actual Permanent Resident Card (Green Card) a little later.”

If the application is denied, the written decision notice will explain the reasons for the denial and whether you can appeal the decision. In most cases, applicants cannot appeal a denial of an adjustment of status application – which is why applicants should work with experienced immigration lawyers to present a strong initial case.

While denials may not be allowed, applicants “may still be eligible to file a motion to reopen or reconsider.”

EB-1 Visa: Consular Processing

From L-1 Status to an EB-1C Green Card

The L-1 visa is a nonimmigrant visa with strict time limitations. Nevertheless, it is also a dual intent visa, which means that it is OK to seek permanent residence while you are in the US in L-1 status. You can also seek permanent residence for your spouse and children. Following is a brief description of how you might go about obtaining permanent residence in the US starting from L status.

The EB-1C Immigration Visa

To obtain a green card, you will need to apply for lawful permanent residence in the US based on a particular immigrant visa classification. You will then need to submit an immigration petition to the USCIS, obtain USCIS approval, and then either adjust your status to permanent residence within the US or apply for an immigrant visa at a US embassy or consulate overseas.

The EB-1C immigration visa is very similar to the L-1A visa, with the major difference being that if offers permanent residence instead of temporary worker status. It is for this reason that if you came to the US in L-1A status, the EB1C visa may well be your best bet. L-1B holders may face somewhat more difficulty (see below for details).

Similarities Between L1A and EB1C Requirements

The requirements for obtaining EB1C immigration status are almost the same as the requirements for obtaining L-1A status. Both statuses require a qualifying relationship between a US company and a foreign company, one year or continuous employment overseas, and a job description of manager or executive.

Differences Between L1A and EB1C Requirements

Although the L-1A and the EB1C are quite similar in many respects, important differences do exist:

• Although L-1A status allows you to transfer to a new office, EB1C status requires your office to have been doing business for at least one year prior to your application filing date.
• Since EB1C status allows you to remain in the US permanently while L status does not allow you to remain more than 7 years, you can expect that the USCIS will scrutinize an EB1C application for more thoroughly than it will an L-1A application. Having an approved L-1A application does not guarantee that your EB1C application will be approved. You will need to pay particular attention to your supporting documentation — the company business plan, for example.
• Another important difference between the L-1 visa is that you can obtain one on the basis of specialized knowledge without serving as an executive or manager. This option does not apply to EB1C applications (although it is not necessarily impossible for an L-1B holder to obtain EB1C status — see below).

If You are Starting from L-1B Status

If you are currently in L-1B status as a specialized knowledge employee, instead of in L-1A status as a manager or executive, you may face additional hurdles obtaining EB1C status. Under certain circumstances you may have to abandon your application altogether and seek immigration under another status. Under many circumstances, however, you can successfully transition from L-1B status to EB1C status.

The trick here is to be able to take your work as a “specialized knowledge employee” and show that it also fits the definition of “manager or executive.” You will need to do this even if you are applying for EB1C status as a manager or executive, because you must show an employment history as a manager or executive.

One way (among others) that you might do this is by taking advantage of the fact that an L-1A employee can be classified as a “manager” even without any subordinates to manage, as long as he heads a key department in the company (such as R&D). If you headed a key department as a “specialized knowledge employee”, it might not be so difficult to re-characterize this position as the manager of a “key department”, even without subordinates to manage.

Application Process

The general procedure for moving from L-1 status to EB1C status is:

• Have your employer file Form I-140 with the USCIS on your behalf;
• Wait for your USCIS Approval Notice to arrive in the mail;
• File Form I-485 with the USCIS (if you are in the United States) or file form DS-260 with your nearest US embassy or consulate (if you are outside the United States). If you file from overseas, your immigration visa will be stamped onto your passport to allow you to enter the US. In both cases, your green card will be mailed to your US address.

Other Options

Depending on your qualifications, you might also be eligible for immigration under the EB-2 or EB-3 visa categories (requiring labor certification) or under the EB-5 (investor) or EB1A (extraordinary ability) visa.

EB-1 Visa: First Preference for Employment-Based Immigration Visa

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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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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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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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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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 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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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:

• Fill out and sign Form I-140 – Petition for a Nonimmigrant Worker
• Pay the appropriate filing fee
• Include the necessary documents to prove your eligibility

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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