EB-1 First Preference Priority Workers
The advantage of the EB-1 Preference Category is that the applicants can skip the Perm Process with the Department of Labor and immediately file with U.S. CIS.
The EB-1 category (where no Labor Certification is required) covers three groups: workers of extraordinary ability; outstanding professors and researchers; and, multinational managers and executives.
EB-1 Extraordinary Ability Workers
In the first subset of the EB-1 priority worker category, there is no job offer required. This means that either an employer may petition for an EB-1 extraordinary worker or the worker may petition for themselves. If the worker self-petitions, they must show evidence of contracts or prearranged commitments for future employment or a description of how they will continue to be gainfully employed in the U.S.
In the US CIS regulations, extraordinary ability is defined as a “level of expertise indicating that the individual is one of a small percentage that has risen to the very top of the field of endeavor.” This extraordinary level of ability must be demonstrated by sustained national or international acclaim and by recognition in the field by extensive documentation. US CIS will require evidence that the work the individual will perform will substantially benefit the U.S.
In order to demonstrate extraordinary ability, the applicant must show that their ability has been recognized in the field of endeavor through sustained acclaim. This can be shown through a single major internationally recognized achievement such as a Nobel Prize, Pulitzer Prize or an Academy Award. Alternatively, the applicant can demonstrate three of the following ten criteria:
Receipt of lesser national or international prizes or awards for excellence in their field of endeavor;
Membership in associations in the field of endeavor that require outstanding achievements of their members as judged by recognized national or international experts;
Published material about the alien and his work in professional journals, trade publications, or the major media;
Participation, either in a group or alone, as a judge of others in the same or a similar field;
Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor;
Authorship of scholarly articles in the field, published in professional journals or the major media;
Display of the alien’s work at artistic exhibitions or showcases in more than one country;
Performance in a lead, starring, or critical role for organizations with a distinguished reputation;
Commanding a high salary compared to others in the field; or
Commercial success in the performing arts, as shown by box office receipts and sales.
Realizing that these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, US CIS also allows for any other comparable evidence.
EB-1 Outstanding Professors and Researchers:
This second subset of the EB-1 priority worker category is for professors and researchers who are internationally recognized for their outstanding achievements. In this category, although the worker must have a job offer, there is no Department of Labor Certification required.
The requirements for this category are as follows:
International recognition as outstanding in a specific academic field;
at least three years of teaching or research in the field- the teaching or research experience can be gained while in pursuit of an advanced degree, but only if the alien had full responsibility for the courses taught, or the research is recognized as outstanding; and an offer of employment.
The employment offer must be:1.a tenure or tenure-track teaching position; or
2.a comparable research position at a university or institute of higher education; or
3.a research position with a private company if the employer has at least three full time researchers and has documented research accomplishments in the field.
The offered position must be permanent which means for an indefinite term or term of unlimited duration with an expectation of continued employment. Unlike applicants in the extraordinary ability subcategory, applicants in the outstanding professor or researcher subcategory must have a job offer.
However, as with all first preference employment petitions, no Department of Labor Certification is required.
The outstanding professor or researcher must demonstrate two of the following criteria:
Receipt of a major prize or award for outstanding achievement in the academic field;
Membership in associations that require outstanding achievements of their members;
Published material in professional publications written by others about the applicant’s work;
Participation as a judge of the work of others in the field;
Original scientific or scholarly contributions in the field; or
Authorship of scholarly books or articles in journals with international circulation.
EB-1 Multinational Executives and Managers:
Multinational executives and managers are exempt from the labor certification requirement.
To be admitted as an immigrant, a multinational executive or manager must have been employed in a managerial or executive or executive capacity for at least one year out of the past three years. The past employment must be with the same employer, an affiliate, a parent or a subsidiary. The employment does not need to have been completed at one time, but can be aggregated over the three years. The petitioning employer must have been doing business in the U.S. for at least one year.
In order to qualify as an executive, the applicant must:
1. Direct the management of the organization or a major component or function of the organization;
2. Establish the goals and policies of the organization, component or function;
3. Exercise wide latitude in discretionary decision making; and
4. Receive only general supervision from higher level executives, the board of directors, or stockholders of the organization.
In order to qualify as a manager, the applicant must:
1. Manage the organization, or a department, subdivision, function, or component of the organization;
2. 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;
3. Have the authority to hire and fire supervised employees, or recommend them for promotion or other personnel action, or (if there are no immediate supervisees) function at a senior level within the organizational hierarchy; and
4. Exercise direction over the day to day operations of the activity or function over which the worker has authority.
EB-2 Advanced Degree Professionals and Exceptional Ability Workers
The EB-2 preference category is applicable for two types of workers:
1. Workers must be members of professions holding advanced degrees (or their equivalent), and
2. Workers with exceptional ability in the sciences, arts, or business who will substantially benefit prospectively the national economy, cultural or education interests, or the welfare of the U.S. A labor certification is required except in some cases where a national interest waiver is available.
EB-2 Advanced Degree Professionals:
An EB-2 applicant must be petitioning for a job that requires an advanced degree and the individual must either possess an advanced degree (master’s degree or higher) or a baccalaureate degree plus five years of progressive experience in the field to substitute for the advanced degree.
EB-2 Workers of Exceptional Ability in the Sciences, Arts or Business:
An EB-2 applicant must prove exceptional ability in the fields of art, sciences and business. Although exceptional ability is limited to aliens in the fields of arts, sciences and business, the US CIS considers athletics as an art for the EB-2 classification. For EB-2 classification, the applicant must show three of the six types of evidence to prove exceptional ability:
1. A license to practice or certification if required in the occupation;
2. For advance degree EB-2’s, official record of a degree from a college, university or other learning institution related to the field in which the alien claims exceptional ability;
3. For exceptional ability EB-2’s, evidence of ten years of full time experience in the field in which employment is sought (typically in the form of letters from past employers);
4. For exceptional ability cases, evidence of a high salary or other form of payment that indicates exceptional ability;
5. For exceptional ability cases, evidence of membership in professional associations; and, for exceptional ability cases, evidence of recognition by peers or professional associations for achievements and contributions to the field.
The National Interest Waiver for EB-2 Advanced Degree Professionals or Workers of Exceptional Ability in the Sciences, Arts or Business:
The EB-2 classification requires a labor certification by the petitioning employer unless a national interest waiver is obtained. In order to obtain a national interest waiver, the applicant must show that granting the EB-2 petition is in the national interest of the United States.
There are two kinds of national interest waiver applications available. Physicians are one category and the other category encompasses all other cases. The Administrative Appeals Office created seven main factors that are evaluated in determining whether a particular job is in the national interest:
1. Improvement of the U.S. economy;
2. Improvement of the wages and working conditions for U.S. workers;
3. Improvement of educational and training programs for U.S. children and under-qualified workers;
4. Improvement of health care;
5. Provision of more affordable housing for young, aged, or poor U.S. residents;
6. Improvement of the U.S. environment and more productive use of the national resources; and,
7. Admission is requested by an interested U.S. government agency.
Additionally, the Administrative Appeals Office has recently focused on three factors:
1 .The worker seeks employment in an area of “substantial intrinsic merit”
2 .The proposed benefit the worker will provide is “national in scope” and
3. The national interest would be adversely affected if labor certification were required.
For eligibility for a physician national interest waiver, the foreign physician must:
1. Agree to work full-time in a clinical practice for five years unless the immigrant visa petition was filed prior to November 1, 1998, in which case the period of required service is 3 years;
2. Work in one of the following medical specialties: family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry;
3. Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), Medically Underserved Area (MUA), or a Veterans Affairs facility; and
4. Obtain a determination from a federal agency or a state department of health that has knowledge of the physician’s qualifications, which states that the physician’s work is in the public interest.
A physician may apply for adjustment of status and obtain work authorization, however US CIS will not make a final determination of an adjustment of status application for a physician who is pursuing a national interest waiver until the physician has practiced full-time in a medically underserved area for a minimum aggregate of five or three years, depending on when the application was filed.
EB-3 Third Preference Skilled Workers, Professionals, and Other Workers
For the EB-3 category, there are three different classifications of workers:
Skilled workers; and
Professional workers are defined as individuals who possess a baccalaureate degree and are entering a job which requires a baccalaureate degree for the entry level.
Skilled workers include those who are entering jobs that require a minimum of two years of training or experience for the entry level. Other workers are those who are entering jobs that require less than two years of training or experience.
Often there is a large backlog in applying for the EB-3 category. In the EB-3 category, all jobs require a job offer and must go through the labor certification process.
EB-4 Fourth Preference Religious Workers
The EB-4 category is for “special immigrants.” Religious workers need to obtain permanent residence through employment. There is a limit of 5,000 visas available annually to religious workers.
An EB-4 religious worker must be:
1. A minister;
2. A person working in a professional capacity in a religious occupation or vocation; or
3. A person who works for a religious organization or an affiliate in a religious occupation who has been a member of the religious group for at least the two years immediately preceding the application; and
4. The individual must be coming to work for a bona fide tax exempt religious organization.
In addition, the applicant must also have worked for the religious organization for at least two years prior to making the application. The work may have been done in the U.S. or a foreign country.
A religious denomination is defined as a religious group that has some form of organized statement of faith, common belief system and similar ecclesiastical governing structure. The affiliated groups should have a common set of religious guidelines, perform their religious ceremonies in similar ways, use the same set of ministerial materials such as hymnbooks and worship guides, and have congregations.
A religious occupation is an activity relating to “traditional religious functions.” This would include religious counselors, cantors, liturgical ministers and workers, religious hospital and health care workers, missionaries, religious translators and broadcasters. It would not include individuals who work for the denomination in a non-religious capacity.
It would also include anyone who is in a religious vocation, defined as someone called to religious life and service. This must be shown through demonstrated commitment to the denomination, the taking of vows and other types of life commitments. This would include nuns, monks, brothers, and deacons.
In order to be considered a qualifying religious organization, the religious worker must work for a “bona fide, nonprofit, religious organization” or a “bona fide organization which is affiliated with a religious denomination.” A bona fide, nonprofit, religious organization is described in USCIS regulations as one that would be tax exempt under the Internal Revenue Code.
Our Senior Partner, Andrew P. Johnson, was a government prosecutor until he started the immigration law firm in 1999. He has authored numerous articles on immigration and international matters which have been published by the American Bar Association and the American Immigration Lawyers Association. In 2013, Andrew P. Johnson was invited to speak to over 30 United Nation Ambassadors regarding the EB-5 visa investor program. In 2015, Mr. Johnson was invited to Washington DC to speak to over 40 United States Ambassador about the EB-5 investment program.
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