Employment-Based First Preference Category
Pursuant to 8 USC 1153(b)(1)(A), a person may apply for a visa on the basis of "extraordinary ability" or pursuant to 8 USC 1153(b)(1)(B) on the basis of being an "outstanding" professor or researcher, or pursuant to 1153 (b)(1)(c) for certain multi-national executives and managers.
The advantages of this category are:
1) that an employer is not required to sponsor this Petition.
2)There is no Labor Certification requirement where there is a need to show that there are no US workers available to perform the employment position.
3) For those from China and India with a substantial backlog in visa categories, this option is available immediately.
Extraordinary Ability Eligibility
A person defined by USCIS as possessing extraordinary ability are those with "extraordinary ability 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." The evidence must demonstrate a level of expertise indicating that the individual is one of "that small percentage who have risen to the very top of the field of endeavor" to be granted this classification.
For example, if you receive a major internationally recognized award, such as a Nobel Prize, you will qualify for an EB-1 classification. Other awards may also qualify if you can document that the award is in the same class as a Nobel Prize.
Since few workers receive this type of award, The second way to prove extraordinary ability is to provide evidence of at least three of the following:
1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence
2. Membership in associations in the field which demand outstanding achievement of their members
3. Published material about the alien in professional or major trade publications or other major media
4. Evidence that the alien has judged the work of others, either individually or on a panel
5. Evidence of the alien's original scientific, scholarly (education), artistic, athletic, or business-related contributions of major significance to the field
6. Evidence of the alien's authorship of scholarly articles in professional or major trade publications or other major media
7. Evidence that the alien's work has been displayed at artistic exhibitions or showcases
8. Performance of a leading or critical role in distinguished organizations
9. Evidence that the alien commands a high salary or other significantly high remuneration in relation to others in the field
10. Evidence of commercial successes in the performing arts
The worker may submit "other comparable evidence" if the above criteria does not apply.
Outstanding Professor or Researcher
For this category, a job offer is required, for a tenure or tenure-track professor or a permanent researcher. Applicants must be internationally recognized as outstanding, and possess at least three years of experience in either teaching or research. Both the employer and the applicant must meet specific requirements.
Petitioners must submit the following evidence:
1. Documentation of the applicant's receipt of major prizes or awards for outstanding achievement in the academic field;
2. Demonstration of the applicant's membership in associations in the academic field which requir outstanding achievement to belong;
3. Published material in professional publications written by others about the applicant's work in the academic field.
4. Evidence of the applicant's participation in the judging of the work of others in the same or an allied academic field;
5. Evidence of the applicant's origianl scientific or scholarly research contributions to the academic field; or
6. Evidence of the applicant's authorship of scholarly books, or articles in scholarly journals with international circulation, in the academic field.
In order to receive an evaluation of your potential application for a self-sponsored Extraordinary Ability petition, please provide us with a payment of $50.00 via credit card, check, or Paypal and email the following items:
1. Complete Curriculum Vitae or resume. The CV should include all employment history, awards, honors, and all of your publications. If you have been asked to serve as a publications reviewer, or as a judge of the work of others, please describe that.
2. One to two page description of what you do and why it is important to U.S. taxpayers
3. The names of at least five individuals who might be willing to write letters of recommendation on your behalf. Please include where they work. Normally, most of the letters should not be from individuals with whom you work; include no more than two in which the letter writers have the same employer as yours. The more letter writers that you can provide the better and stronger your case will be. Please indicate if there is anything special about any of these people that we should know. Describe their positions and credentials.
4. Please include your telephone numbers so that we may contact you
Certain Multination Executives and Manager
The third sub-category of the EB-1 classification is reserved for executives and managers of foreign companies who are transferred to United States.
1. Basic Requirements-The requirements for this classification closely track those for L-1A intracompany transferees. A multinational manager or executive is eligible for priority worker status if he or she has been employed outside the U.S. in a managerial or executive capacity for at least one of the three years immediately preceding the filing of a petition, or, in the case of a foreign worker presently in the U.S., one of the three years preceding entry to the U.S. as a non-immigrant. The regulations (but not the statute itself) require past employment to have been outside the U.S. and in a managerial or executive capacity. The past employment must have been with the same employer, an affiliate, or subsidiary employer. The foreign worker must be coming to work in an executive or a managerial capacity.
2. The Necessary Multinational Relationship-The petitioner must be a U.S. employer that is an affiliate, a subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad. The U.S. petitioner must have been doing business for at least one year.
The definitions of affiliate and subsidiary in the regulations are comparable to those found in L-1 intracompany transferees regulations. An "affiliate" is defined as one of two subsidiaries which are owned or controlled by the same parent or individual, or by a group of individuals so long as each individual owns and controls approximately the same share or percentage of each entity. Affiliate also includes certain international accounting firms market accounting services under an internationally recognized name. Subsidiaries include direct or indirect ownership of at least half of another entity, ownership of 50 percent of a 50-50 joint venture, or ownership of less than 50 percent of an entity with in fact control.
3. Managerial or Executive-The beneficiary must be coming to the United States to work in a managerial or executive capacity. The definitions of manager and executive are critical in formulating a case.
1)"Managerial capacity" is an assignment in which the employee primarily
a. manages the organization or a department, subdivision, function or component of the organization;
b.supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function within the organization, or department or subdivision of the organization;
c. 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
d. exercises descretion over the day-to-day operations of the activity or function for which the employee has authority
Note that a management position does not necessarily require management of staff. Management of a function can be sufficient.
2) "Executive capacity" means an assignment within an organization in which the employee primarily:
a. directs the management of the organization or a major component or function of the organization;
b. establishes the goals and policies of the organization, component , or function;
c. exercises wide latitude in discretionary decision making; and
d. receives only general supervision or direction from high level executives, the board of directors, or stockholders of the organization.