EB-1 First Preference

Extraordinary Ability

Extraordinary ability is defined as a level of expertise obtained only by that small percentage of foreign nationals at the very top of their field of endeavor. An EB-1 (Extraordinary Ability) Immigrant Petition must be accompanied by evidence that the foreign national has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.

A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.

Such evidence shall include evidence of a one-time achievement (that is, a major, international recognized award), or at least three (3) of the following:

  • Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  • Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
  • Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
  • Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
  • Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
  • Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
  • Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;
  • Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
  • Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
  • Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.

In order to prepare an EB-1 petition, our law firm requires the following information:

  1. A statement describing the field of expertise and contributions to the field
  2. Reference letters
  3. Curriculum Vitae
  4. Corroborating Documentation

Outstanding Researchers or Professors

To qualify for classification as an Outstanding Researcher, an individual must be able to document that:

  1. S/he is recognized internationally as outstanding in a specific academic area,
  2. S/he has at least three (3) years of experience in teaching or research in the academic area, and
  3. S/he seeks to enter the United States:

(I) for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,

(II) for a comparable position with a university or institution of higher education to conduct research in the area, or

(III) for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least three (3) persons full-time in research activities and has achieved documented accomplishments in an academic field.

Academic field is defined as a body of specialized knowledge offered for study at an accredited United States university or institution of higher education. Permanent, in reference to a research position, means either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.

Initial evidence must include at least two (2) of the following:

  • Documentation of receipt of major prizes or awards for outstanding achievement in the academic field;
  • Documentation of membership in associations in the academic field which require outstanding achievements of their members;
  • Published material in professional publications written by others about the applicant’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
  • Evidence of participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
  • Evidence of original scientific or scholarly research contributions to the academic field; or
  • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;
  • Evidence that the applicant has at least three (3) years of experience in teaching and/or research in the academic field. Experience in teaching or research while working on an advanced degree will only be acceptable if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. Evidence of teaching and/or research experience shall be in the form of letter(s) from current or former employer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien; and
  • An offer of employment from a prospective United States employer. A labor certification is not required for this classification.

The offer of employment shall be in the form of a letter from:

  • A United States university or institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien’s academic field;
  • A United States university or institution of higher learning offering the alien a permanent research position in the alien’s academic field; or
  • A department, division, or institute of a private employer offering the alien a permanent research position in the alien’s academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.

Multinational Managers and Executives

A multinational manager or executive will qualify for priority worker status if s/he has been employed outside the U.S. in a managerial or executive capacity for at least one (1) full year out of the three (3) years immediately preceding his/her transfer to the U.S., and if his/her position in the U.S. will be with the same company as the foreign employer or one that qualifies as an affiliate, subsidiary or parent of that employer, and if s/he will also qualify as managerial or executive.

The terms “manager” and “executive” are defined and generally exclude staff positions, first line supervisors and those whose primary tasks are to produce or deliver the goods or services of the employer.

Professionals who manage other professionals, e.g., engineering project managers and managers of a “function”, (otherwise classifiable as staff positions without supervisory authority), can qualify.

National Interest Waiver

When deemed to be in the national interest, the requirement that an individual’s services in the professions be sought by an employer in the U.S. in order for the individual to qualify for employment-based second preference immigrant status may be waived.

In determining whether an individual qualifies for a national interest waiver, USCIS considers three (3) primary factors:

  1. Whether the individual seeks employment in an area of substantial intrinsic merit;
  2. Whether the proposed benefit to the U.S. will be national in scope; and
  3. Whether the significant benefit derived from the individual’s participation in the national interest field of endeavor considerably outweighs the inherent national interest in protecting U.S. workers through the labor certification process.

Qualifying fields that possess substantial intrinsic merit include the arts as well business and the sciences. Therefore, the proposed benefit to the U.S. can be cultural as well as economic or security related. When assessing whether the value of an individual’s immediate contributions outweigh the value of the protections of labor certification, USCIS will consider:

  1. The applicant’s stature in the relevant field;
  2. The level of education and experience required in order to perform the proposed services;
  3. Whether the applicant is otherwise ineligible for labor certification due to self-employment;
  4. Whether current delays in labor certification processing will otherwise prevent vital services from being rendered to the U.S.; and
  5. Evidence of the petitioning employer’s unsuccessful recruitment efforts.

Physician National Interest Waiver Memorandum

The Physician’s National Interest Waiver is available to any physician willing to work in an area or areas of the U.S. designated by the Secretary of Health and Human Services (HHS) as having a shortage of health care professionals or at a Veteran’s Administration facility. The physician must work full-time for a period of five (5) years within a six (6) year period for the facility.

The time normally begins to accumulate on the date of the Immigrant Petition (Form I-140) approval, but in the case of a physician who has already obtained the J-1 waiver and changed status from J-1 to H-1B, the five (5) year period begins the date of the change of status approval.

The following documentation is required when submitting this type of application:

  • A letter (issued and dated within 6 months prior to the date on which the petition is filed) from a Federal agency or the Department of Public Health (or equivalent) of the state where the physician will work attesting that the physician’s work is or will be in the public interest. (An attestation from a State public health department must reflect that the agency has jurisdiction over the place where the physician will work.)
  • An employment contract (issued and dated no more than six (6) months prior to the date the petition is filed).

After the I-140 petition is approved by the USCIS, the physician may file an Application to Adjust Status and applications for work and travel authorization. The physician is not required to maintain nonimmigrant status after the application for adjustment has been filed.

The USCIS will not approve the adjustment application until the 5-year period of service is completed. Additionally, the physician will not be fingerprinted and will not submit a medical examination until the five-year period has been completed.

As evidence of completing the five (5) years of service, the USCIS will request from the physician individual tax return documents (including copies of all W-2 forms), and documentation from the employer attesting that the physician has performed the required full-time clinical medical service. The USCIS requires that no later than two years + 120 days after completion of the time requirement, evidence be submitted proving that the physician has served in the underserved area.

If the physician has already fulfilled this requirement at the time of filing the adjustment of status application, the physician will need to file this evidence with the adjustment application. Then, after completing the remaining years of service, the physician will be asked to provide the remaining tax forms (and W-2s) and another employer attestation along with the physician’s medical examination results before the USCIS can approve the application.