EB-1 Preference

Individuals who meet the requirements for EB-1 status are given first preference in granting permanent residency in the United States. Individuals can qualify for EB-1 status if they fit into one of three categories: multinational managers or executives, outstanding professors and researchers, or individuals with extraordinary ability.

Multinational Managers or Executives

To qualify as a multinational manager or executive, an individual must demonstrate that he or she has been employed by a foreign entity for at least one of the last three years in a managerial or executive role, and that he or she intends to enter the United States for the purpose of continuing to work in that type of role for the same entity, or for a different entity with a “qualifying relationship” to the foreign entity. An entity has a qualifying relationship to another entity if it is a parent, branch, affiliate, or subsidiary of that entity.

An individual will qualify as a manager only if the individual’s primary responsibilities include managing or supervising other managers or professional employees, or include managing an essential function or department within the organization. To qualify as a manager, the individual must have the authority to hire employees, fire employees, or make other personnel decisions. Moreover, an employee who only manages or supervises other individuals who are not managers, supervisors, or professionals will usually not be considered a manager for the purposes of EB-1 status. Professionals, for purposes of the Immigration and Nationality Act (INA), include architects, engineers, lawyers, physicians, surgeons, teachers, and professors, as well as other jobs for which the absolute minimum required education is a baccalaureate degree.

If an individual does not have a supervisory or managerial role, he or she may still qualify as an executive if his or her primary responsibilities include management of the organization or one of its major components, establishing some or all of the organization’s policies, and exercising broad discretion with limited supervision or input from higher executives.

A petition for permanent residency as an EB-1 multinational manager or executive must be filed by the entity within the United States that is seeking to employ the individual. It cannot be filed by the foreign entity for which the individual is currently working or by the individual. The employer filing the petition must have existed in the United States for at least one year prior to the time the petition is filed, and must at the time of filing the petition be a qualifying entity. Moreover, the foreign entity for which the individual currently works must continue to exist at the time the petition is filed.

Outstanding Professors and Researchers

An individual may also qualify for EB-1 status if he or she meets the requirements as an outstanding professor or researcher and has an offer of employment from a United States institute of higher education for a position in which they would be pursuing tenure in a tenure track or comparable teaching or research position.

In order to qualify as an outstanding professor or researcher, the individual must be recognized internationally as outstanding in a specific area and have at least three years of teaching or research experience in that area. To prove that the individual meets the first requirement of international recognition, he or she must provide evidence of at least two of the following: (i) a major prize or award within the subject area; (ii) membership in a selective association that requires members to make an outstanding achievement; (iii) a professional publication written by another that is about the individual’s work in that field; (iv) participation as a judge of the work of other individuals within the field; (v) innovative contributions to scientific or scholarly research within the field; or (vi) publication of scholarly books or articles written by the individual that have been published internationally. The evidence provided by the individual will then be judged to determine whether there is a preponderance of the evidence that the individual can be considered internationally recognized as outstanding in that field.

Because a job offer is required for this classification, the petition for this type of EB-1 status must be filed by the United States institution seeking to employ the individual. The institution must also definitively state that the potential employment is of a permanent nature, such as tenure track or a permanent research job, as this is an essential element to this type of classification.

Extraordinary Ability

Extraordinary ability is the only EB-1 status that does not require an offer of employment for an individual to qualify. An individual may qualify for this status if he or she can demonstrate that they possess extraordinary abilities in a field of science, art, education, business, or athletics and that he or she intends to enter the United States for the purpose of continuing that type of work.

One way that an individual may qualify for permanent residency under this status is if he or she can show proof of a one-time, internationally recognized, prestigious achievement, such as a Nobel Prize, Olympic medal, or an Oscar. If the individual has not obtained a prestigious, internationally recognized award such as this, he or she may still qualify for this status upon a showing that they meet at least three of the following criteria: (i) receipt of less prestigious national or international awards; (ii) membership in an association within the field that requires some outstanding achievement; (iii) the individual’s work has been published in a major publication or major media outlet; (iv) the individual has been invited to judge others’ work in some type of competition within the field; (v) the individual has made major innovative contributions to the field; (vi) the individual has authored written works published in major publications within the field or major media outlets; (vii) the individual’s art has been displayed at exhibitions; (viii) the individual has performed a leading role in a distinguished organization; (ix) the individual is paid an exceptionally high salary or compensation for his or her work compared to others in the field; (x) the individual can provide evidence of commercial success in performing arts; or (xi) any other evidence that establishes extraordinary abilities.

Because this type of EB-1 status does not require an offer of employment, the individual may file this petition on their own. The standard for admission under this status is very high, however, and may be difficult to achieve without an experienced lawyer. The individual must show that he or she is at the very top of the applicable field to qualify.

 

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