First Preference (EB-1)

Employment First Preference (EB-1): Priority Workers
Priority Workers and their families receive 28.6 percent of the yearly worldwide limit and for this category, These priority workers are given first preference because they have been deemed to “substantially benefit” the U.S. and  they do not have to complete the labor certification, meaning that they are not required to establish that there are no qualified U.S. workers available for the proposed position. The first preference immigrant category is most desirable because it can be processed relatively quickly vsas are available immediately.

Within this preference category, there are three sub-groups:

A) EB-1A: Extraordinary ability in the arts, sciences, business or athletics
Aliens with extraordinary ability in the sciences, arts, education, business, or athletics may qualify for an EB-1A visa if their work in the field has been demonstrated by sustained national or international acclaim and their achievements have been recognized in the field through extensive documentation. The applicant must be one of the small percentage who have risen to the very top of the field to be granted this classification

“Extraordinary Ability” is defined as 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”  and Applicants in this category must demonstrate “sustained national or international acclaim” and high recognition in his/her field. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the USCIS, rather than through an employer.

Prospective EB-1 “Extraordinary Ability” professionals must either be the recipient of a highly prestigious international award, such as the Nobel Prize, or, if an award of this nature is not available, then documentation of a minimum three (3) of the following ten (10) criteria must be met.

  • Received a national or internationally recognized award in their field;
  • Membership in professional association that demands excellence from its members;
  • Published material about the individual written by others;
  • . Participation, either individually or on a panel, as a judge of the work of others in the same or an allied field;
  • Evidence of original contribution of major significance in their field;
  • Authorship of scholarly article, journal, publication or research;
  • Artistic display of work in exhibitions or showcases;
  • Commands high salary in relations to other in their field;
  • Performance in a leading or critical role for distinguished organizations; or
  • Command of a high salary or other significantly high remuneration for services, in relation to others in the field;
  • Commercial successes in the performing arts, as shown by box office receipts or record, CD or video sales.

In some instances being able to show 3 of the 10 above may not be enough, as USCIS may required additional evidence to show extraordinary ability.

EB-1B: Outstanding Professors and Researchers
Qualifying professors or researchers must have at minimum three (3) years of experience in teaching or research in their field, with at an academic institution, non-profit, or within private industry. The alien must be internationally recognized as “outstanding” in their academic field through merits or awards, letters of support, or published works. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS

The offered position cannot be temporary in nature. The applicant must be offered tenure, tenure track or a position with an indefinite or unlimited time duration by a U.S. university, institution of higher learning or a private employer. If the job offer is in the private sector, the employer has to have at least three full time employees performing research and the sponsoring company must have achieved documented accomplishments in an academic field.

Prospective EB-1 “Outstanding Professor and Researchers” professionals must meet at minimum two (2) of the following six (6) criteria:

  • Received a national or internationally recognized award in their field;
  • Membership in professional association that demands excellence from its members;
  • Published material in professional publications about the individual’s work written by others;
  • Participation as a judge of other work in a related field;
  • Original contributions of scientific or scholarly research in their field of expertise; or
  • Authorship of scholarly books or articles in the field in scholarly journals with international circulation.

Merely meeting two of the above requirements may not be enough. Evidence of the applicant’s international recognition as being outstanding, e.g. expert opinion letters, among other things, is often required by USCIS. Ask your immigration attorney for assistance in this regard.

EB-1C: Multinational Executive or Manager

The third subsection of priority workers allows many multinational companies to transfer their executives or managers to the United States from their parent/affiliate/ subsidiary/branch offices outside the US. The International Manager must have been employed overseas, with the same employer, for one (1) of the last three (3) years in a managerial or executive capacity  and must be coming to work in a managerial or executive capacity.. The sponsor must be a U.S. employer that is an affiliate, subsidiary, or the same company that employed the individual abroad and have been in existence for at least one year. If the individual has been in the U.S. in a non-immigrant status, such as the L-1 or H1B status for the past three years, then the “one of three year requirement” may be met by looking back to the period preceeding his/her entry into the U.S. in a nonimmigrant status. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.

To qualify as a manager, the applicant must:

  • Manage the organization, or a department, subdivision, function or component of the organization
  • Supervise and control the work of other supervisory, professional, or managerial employees, or manage an essential function within the organization, or a department or subdivision of the organization
  • Have the authority to hire and fire or recommend staff for promotion. If no other employees are supervised, the applicant functions at a senior level within the organizational hierarchy
  • Exercise discretion over the daily operations of the activity or function.

To qualify as an executive, the applicant must:

  • Direct the management of the organization or a major component or function of the organization
  • Establish the goals and policies of the organization or component/department within
  • Exercise wide latitude in discretionary decision-making
  • Receive only general supervision or direction from higher level executives, the board of directors or stockholders of the organization.

Individuals who have qualified for the L-1A visa should be able to meet the legal requirements of this immigrant classification. However, unlike the L-1B nonimmigrant category, this immigrant category is not designed for applicants with specialized knowledge.)

In determining whether an individual is acting in a managerial or executive capacity, USCIS will 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. The actual number of employees supervised is not a determinative factor.

In addition, individuals may qualify for more than one of the above categories and it is actually possible to submit an application for more than one category. In addition, another tactic that is often used to hedge a green card strategy is to apply under both EB-1 as an extraordinary alien or one of the other EB-1 classifications and apply under the National Interest Waiver (NIW) category of EB-2. Assuming you are not subject to a country backlog in the EB-2 category (Indian and Chinese nationals currently are), this can be a great way to increase your odds, as there is a lot of overlap between the EB-1 categories and the National Interest Waiver.

Our office can evaluate academic and professional credentials to determine the likelihood of success of a petition in one of these categories. For qualified individuals, we will help prepare the necessary documentation, help gather supporting evidence, prepare a detailed brief to USCIS supporting the petition, and respond to any inquiries from the Department of Homeland Security. If you believe that you or your employee may qualify in one of these categories, please do not hesitate to contact us for an in depth consultation.