Extraordinary Ability/Executives, Managers/Academics (EB-1)

Priority workers comprise the first preference for employment-based immigration under U.S. law, and is intended to attract to the U.S. individuals of extraordinary ability and outstanding professors and researchers, and to promote foreign investment by easing the permanent admission of executives and managers of multinational corporations. Federal law allocates 28.6{877c034753eacee7259c3c97ae2e02ad1f8f94c95ed6455a0455c04073043e02} of total U.S. employment-based immigrant visas for EB-1 priority workers and their dependents, totaling approximately 40,000 immigrant visas per year.

The priority worker category is comprised of three divisions: persons of extraordinary ability, outstanding professors and researchers, and executives and managers of multinational businesses. In many respects, the evidence presented to support priority worker petitions is similar to that required for admission in the somewhat similar nonimmigrant O-1 status (extraordinary individual) and L-1 (intracompany transferee) classifications. Significantly, priority worker petitioners need not complete the lengthy and complex labor certification process, and, in the case of extraordinary ability individuals, need not even have a pending job offer. For those who can provide the required evidence, first preference is an approach to LPR status with many advantages.

Three Categories

The three categories of priority workers are:

  • Individuals of extraordinary ability in the sciences, arts, education, business, or athletics, as demonstrated by sustained international acclaim. They must seek to enter the U.S. for the purpose of continuing work in their area of extraordinary ability.
  • Outstanding professors and researchers who are internationally recognized as outstanding in their specific academic area and have been active in that area for at least three years as a teacher or researcher. Their entry into the U.S. must be for a tenured or tenure track position with a university or institution to teach or conduct research, or for a comparable position to conduct research for a private employer which already employs at least 3 full time researchers and whose accomplishments are documented.
  • Executives and managers of multinational business entities who are continuing their employment with a U.S. affiliate or subsidiary after working at least one year abroad (of the last three) as an executive or manager working for an affiliate or subsidiary of the same entity.

Evidence Required

Individuals of Extraordinary Ability

Petitions for individuals of extraordinary ability must demonstrate either the receipt of a major internationally recognized prize, such as the Nobel, or at least three of the following:

  • Receipt of a lesser national or international prize;
  • Evidence of membership in associations which require outstanding achievements of their members;
  • Copies of publications from professional, trade, or mainstream media relating to the individual's work;
  • Evidence of the individual’s participation as a judge of the work of others in the same field;
  • Evidence of the individual’s original contributions of major significance to their field;
  • Evidence or authorship of scholarly articles in professional journals or in major media;
  • Evidence of display of the person's work in artistic exhibitions and showcases;
  • Evidence the individual has performed in a critical or essential capacity for organizations and establishments with distinguished reputations;
  • Evidence that the individual has commanded a high salary or other remuneration;
  • Evidence of commercial successes in the performing arts, such as high box office, music, or video sales; or
  • Other germane evidence if these criteria do not apply.

USCIS will evaluate the evidence provided and (1) count the evidence to see if it meets three or more of the criteria, and then (2) evaluate whether the evidence as a whole is sufficient to demonstrate the individual is one of that small percentage who have risen to the very top of the field of endeavor.

Additionally, although a job offer is not required, persons of extraordinary ability must present evidence of their intent to continue work in the field of expertise. This could be in the form of a letter from a perspective employer or a business plan.

Outstanding Professors and Researchers

Petitions for outstanding professors and researchers must demonstrate:

  • Their field of expertise is a field offered for study at an accredited U.S. college or university; and
  • Evidence that the individual has at least three years of experience in teaching and/or research in their academic field;
  • Evidence of the offer of permanent employment from a U.S. college or university or qualified private research lab;
  • Evidence of the international recognition of the professor or researcher as outstanding in their field, as demonstrated by two or more of the following:
    • Receipt of major prizes or awards for outstanding achievement in the academic field;
    • Membership in associations in the academic field which require outstanding achievements to join;
    • Published material in professional publications written by others about the individual's work in the academic field;
    • Evidence of participation as a judge of the work of others in the same field;
    • Evidence of original scientific or scholarly research contributions to the field; and
    • Evidence of authorship of scholarly books or articles in scholarly journals with international circulation.

USCIS will evaluate the evidence provided to see if all criteria are met. In regards to the criteria for international recognition, USCIS will (1) count the evidence to see if it meets two or more of the criteria for international recognition, and then (2) evaluate whether the evidence as a whole is sufficient to demonstrate the individual is recognized internationally as outstanding in their academic field.

Executives and Managers

Petitions for executives and managers of multinational companies with operations in the U.S. must demonstrate:

  • The individual will be employed by an affiliate of a business entity which has continuously provided goods or services, that the employing U.S. entity has operated for at least a year, and that the executive or manager has been employed abroad with the petitioner's affiliate for at least one out of the past three years; and
  • The individual’s employment abroad has been and in the U.S. will be as either
    • An executive who:
      • Directs the organization or a major component of it;
      • Establishes broad goals and policies of the organization or of its functions;
      • Exercises broad decision-making discretion; and
      • Receives only general supervision from upstream managers, board or stockholders;

or

    • A manager who:
      • Manages all or part the organization;
      • Oversees the work of other managers; of an essential company function; or of a division of the organization;
      • Maintains authority to hire and fire supervised employees, or otherwise functions at a senior level within the organizational hierarchy; and
      • Directs day-to-day operations of an activity or function.

Procedure

Procedures differ depending on which of the three first preference classes applies, and whether or not the individual has already been admitted to the U.S. in nonimmigrant status, and if so, in which status. In all cases, however, the process commences with the filing of an I-140, Immigrant Petition for Alien Worker with USCIS seeking to establish the individual’s qualifications. Persons of extraordinary ability may self-petition, but professors/researchers and executives/managers must have petitions filed on their behalf by their current or prospective employers. Petitioning employers must demonstrate that they possess the financial ability to pay the individual the agreed upon wage from the time the application is filed through the person's securing permanent resident status.

If the individual has been previously admitted into the United States in an employment based, nonimmigrant category that permits dual intent (such as H-1B, and L-1), they may apply for an adjustment of status (AOS) rather than leaving the U.S. and proceeding through processing at a U.S. consulate in their country of nationality. There are arguments pro and con as to whether AOS is tactically the better route (it usually is) and there are numerous threshold requirements that the beneficiary must meet, such as a demonstrably pristine record of immigration law compliance. The AOS application may be filed simultaneously for the employee, their spouse, and their minor children, which affords the spouse the ability to obtain employment authorization documents if he or she was not already in a nonimmigrant status that permitted employment. A key disadvantage of AOS is that, with the exception of individuals in H-1B or L-1 status who are traveling on an H-1B or L-1 visa, if the employee or their derivative relatives travel abroad while the AOS is pending they must obtain permission from USCIS before departing ("advanced parole") or risk voiding the AOS application and requiring refilling anew. This can be a time consuming and frustrating task, or worse.

If the beneficiary is not applying for AOS, once the underlying petition is approved, USCIS will forward notice of approval to the appropriate consulate, usually that of the beneficiary’s country of current or most recent residence. The beneficiary will also receive an immigrant visa application packet and instructions.

Note that a consular denial of an immigrant visa application is final and not subject to judicial review.

Dependents

The principal beneficiary’s spouse and minor children may accompany the principal and receive permanent resident status.