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EB-1 Petition

Posted on in US Immigration Law

EB-1 (Employment based First Preference Immigration petition) is an immigration petition for those people who are recognized as being at the very top of their field and are coming to the United States to continue their work in that field. EB-1 is intended for "priority workers", and is relatively faster route, compared to all other employment based immigrant petitions. Unlike, most EB-2 and EB-3 Applicants, EB-1 Applicants do not have to go through the "labor certification" process and can obtain their green card just in a few months of filing (usually 4 to 6 months mark).

The biggest advantage of EB-1 over other employment based green cards is that EB-1 Applicants who are in US, can concurrently file an I-140 (Immigrant petition for an Alien Worker) and I-485 (Application for Adjustment of Status. By virtue of I-485 filing, the EB-1 workers also become eligible to receive Travel Document (Advance Parole) and Work Permit, for him/her and dependent family members who are eligible to file I-485.

There are three (3) types of EB-1 petitions:

  1. Alien of Extraordinary Ability (EB-1A) - This category is reserved for those people with extraordinary ability in the sciences, arts, education, business, or athletics that has been demonstrated by sustained national or international acclaim
  2. Outstanding Researcher/Outstanding Professor (EB-1B) - This category is reserved strictly for professors or researchers, recognized internationally for their outstanding academic achievements in a particular field
  3. Multinational Managers and Executive Transferees (EB-1C) - This category is reserved for managerial and executive level employees of a foreign company, who are being transferred to a related US company

EB-1 v. Other Employment Based Immigrant Petitions

An important point to note here is that EB-1A, does not require an employer to petition on behalf of EB-1 Applicant, whereas both EB-1B and EB-1C require a sponsoring employer. Not requiring an employer and being able to self-petition is a great advantage to EB-1A Applicants, in contrast to most employment-based (except NIW) candidates.

Secondly the exemption from Labor Certification requirement is very significant, because Labor Certification is a really long, time-consuming, and expensive process, where US Employers are required to first go through American recruitment, and demonstrate that no sufficient able, willing, and qualified U.S. worker is available to fill the position offered. If there is a qualified US worker, the Labor Certification will be denied. Labor Certification will be denied, even if there is a qualified U.S. Worker who meets the minimum job requirements set up by the employer, even if the foreign worker is more qualified or suitable for the position. So it is a great relief that a Labor Certification is not required for EB-1 petitions.

Therefore, the most significant advantages of EB-1 include:

  1. Exemption from Labor Certification filing requirement
  2. No backlogs or wait time, as the visa numbers are almost always current
  3. If Applicant is in US, the option to file I-485 (Adjustment of Status Application) along with work permit and travel document
  4. Option to file EB-1A and EB-1B under premium processing (15 day adjudication). EB-1C cannot be premium processed at this point.
  5. Self-petitioning option for EB-1A (just like NIW and EB-5). A permanent job offer or a US Employer is not required and EB-1 Applicants

Please also note that some candidates who qualify for EB-1, could also qualify for NIW (National Interest Waiver), which can also be self-filed while EB-1 petition is pending.

Eligibility Criteria for EB-1

The three different categories of EB-1, has different eligibility criteria.
EB-1A Extraordinary Ability Applicants are required to demonstrate "extraordinary ability" in the sciences, arts, education, business, or athletics through "sustained national or international acclaim", with achievements recognized in their field through extensive documentation. EB-1A Applicant, can meet the eligibility criteria, by either providing evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal) or in the alternative they must meet at least 3 of the 10 criteria mentioned below.

EB-1B Outstanding Professors and Researchers are required to demonstrate at least 3 years of experience in teaching or research in that academic area and also an international recognition for their outstanding achievements in a particular academic field. Furthermore, they must be entering the United States to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education, or a private employer with at least three full-time researchers already employed by such private employer.
EB-1C Multinational Manager or Executive is required to demonstrate 1 year of managerial or executive employment abroad in a related company, within 3 years immediately preceding the filing of EB-1C petition. The US and the foreign company must be related with each other as affiliates, parent/subsidiary, or certain permissible joint venture set-ups. EB-1C Applicant must be coming to the US to work for the US Company in managerial or executive capacity.

Requirements and Eligibility Criteria for EB-1A - Demonstrating Extraordinary Ability

Per 8 C.F.R. § 204.5(h)(2), Extraordinary ability means 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. In order to qualify for EB-1A, the candidate must meet following requirements:

  1. Sustained National or International acclaim - Alien should possess extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.
  2. Documented Achievements - Alien's achievements have been recognized in the field through extensive documentation.
  3. Major International Award or 3 of 10 Criteria - Alien must either be (a) recipient of a major internationally recognized award, similar to a Nobel Prize; or in the alternative (b) meet at least three of the ten requirements listed below:
  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that your work has been displayed at artistic exhibitions or showcasesEvidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of your commercial successes in the performing arts

Requirements and Eligibility Criteria for EB-1B - Outstanding Professor & Researcher

EB-1B category is reserved for professors and researchers who are recognized internationally as outstanding in their academic field. Unlike EB-1A that can be self-petitioned, EB-1B can only be filed by a US employer (also called Petitioner). EB-1B Applicant / Beneficiary must meet the following requirements:

1. Three Year Experience: Have at least 3 years of prior teaching or research experience. If the teaching or research experience was gained during the Ph.D., it can still be counted if Applicant has completed such degree and received the degree certificate, and such experience meets the following conditions:

Note: The research experience during Ph.D. or postdoc research, can be counted if that research has been recognized as "outstanding"

Note: The teaching experience obtained during Ph.D., can be counted if Applicant had the full responsibility for the class taught

2. Hold a tenure-track faculty position or have a permanent job offer: The Applicant must be entering US to pursue tenure or tenure track teaching position or a permanent research position.

Note: If the job is offered by a private employer, such employer must already have at least three full-time researchers (having achieved documented accomplishments but do not have to be extraordinary ability aliens) working for the employer.

3. Meet at least 2 of the following 6 alternative criteria, by submitting documentation of at least two of the following:

  • Evidence of receipt of major prizes or awards for outstanding achievement
  • Evidence of membership in associations that require their members to demonstrate outstanding achievement
  • Evidence of published material in professional publications written by others about the alien'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

Please note, the employer must verify through job offer or employment verification letters that offered position is a tenured or tenure-track teaching or research position in the alien's field or in the alternative the position must be a permanent research position with no fixed term.

Client should carefully discuss and review all the above mentioned options with a competent attorney, to access EB-1 eligibility.

State Bar of California NYSBA Santa Clara County Bar Association US Department of Homeland Security US Court of Appeals US Patent and Trademark Office
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