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.
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.
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 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.
Individuals who qualify for EB-2 status are given second preference in granting permanent residency to the United States. Individuals can qualify for EB-2 status if they fit into any of the following categories: advanced degree, exceptional ability, or qualification for a national interest waiver.
To qualify for EB-2 status based on an advanced degree, an individual must provide proof that the job he or she wishes to move to the United States to perform requires an advanced degree, and that the individual possesses the required advanced degree or that he or she possess progressive experience in the profession that amounts to an equivalent of the advanced degree. The individual must have at the time of filing the petition a permanent, full time job offer in the United States that requires the relevant advanced degree in order to qualify for this status.
If the individual seeks to qualify on the basis of possession of the required advanced degree, he or she must provide documentation, such as an official transcript from a university or higher education institution, proving that they possess either the required United States advanced degree or its foreign equivalent. In determining whether a foreign degree qualifies as an “advanced degree” for EB-2 purposes, the agency will look to the Electronic Database for Global Education. A foreign degree is judged by factors such as the amount of schooling required to obtain the degree and whether the foreign state had any licensure requirements that the individual had to meet before he or she could work in the profession.
If the individual is seeking qualification based on progressive experience considered to be equivalent to the advanced degree, the individual must prove that he or she possesses a United States baccalaureate degree or its foreign equivalent, as well as at least five years of progressive post-baccalaureate work experience in the profession. Moreover, work experience with the individual’s current employer does not count toward the five-year experience requirement unless that work was performed in a different position than the position for which entry to the United States is sought. The United States position must included different or additional job duties in order for the prior experience to count toward the five-year requirement.
A petition for EB-2 advanced degree status must be filed by the employer, along with a statement by the employer verifying that the position in fact requires an advanced degree or a baccalaureate with at least five years of progressive post-graduate experience. The agency may also require the employer to prove that the job does in fact require the stated experience.
To qualify for EB-2 status based on exceptional ability, an individual must show that he or she possesses exceptional skills in the sciences, arts, or business, and that, because of those abilities, he or she is likely to substantially benefit the United States’ economic, cultural, or educational interests.
To be considered an individual of exceptional ability, the applicant must provide at least three of the following pieces of evidence demonstrating his or her abilities: (i) an academic record indicating that they have a degree, diploma, or certificate from an institution of higher education relating to the area of exceptional ability; (ii) letters from employers verifying at least 10 years of full-time experience in their area of expertise; (iii) a required license or certification in their profession or occupation; (iv) evidence that they have demanded and been paid a salary or wage for services that demonstrates exceptional ability; (v) evidence of membership in one or more professional associations; (vi) evidence of recognition by peers, government entities, or business organizations for significant achievements or contributions made by the individual to the relevant field or profession; or (vii) any other comparable evidence showing exceptional ability.
To satisfy the requirement of showing a prospective benefit to the United States, the individual should provide any documentation showing a record of their achievements in foreign states and a description or explanation of how they intend to continue these achievements and contributions to their field in the United States. Some documents that may help to satisfy this requirement include evidence of past awards or special recognition for accomplishments, reports and academic papers that have been published about the individual’s work, or letters of recommendation from previous employers, colleagues, or experts in the individual’s field with whom they have worked.
Because EB-2 status for exceptional ability does not require an offer of employment in the United States, an individual may petition for this status on his or her own behalf.
A national interest waiver is sought by individuals who wish to be admitted to the United States under EB-2 status without having to obtain a labor certification from the Department of Labor. Generally, an employer or individual seeking employment-based permanent residency will obtain a labor certification before petitioning the United States Citizenship and Immigration Services for a visa, and both are required in order to obtain permanent residency. If an individual applies for EB-2 status under a national interest waiver, he or she is asking the agency to waive the requirement for a labor certification.
The criteria for a national interest waiver are very similar to the criteria to show exceptional ability. The individual applying for this waiver must provide proof of at least three of the pieces of evidence required to show exceptional ability. See supra, “Exceptional Ability.” In addition, the individual must show that it is in the United States’ national interest to waive the labor certification requirement.
There is no statutory definition of the term “national interest,” but generally to show that waiver is in the United States’ national interest an individual must satisfy three requirements: (i) showing that the individual plans to work in an area of substantial intrinsic merit; (ii) showing that the individual’s work will have a national impact; and (iii) showing that the benefits the individual’s work would provide to the national interest outweigh the interest in requiring the labor certification.
To determine whether the first requirement is satisfied, the agency will consider factors such as whether the individual’s proposed work will improve the United States economy, positively impact wages and working conditions in the United States, help to improve educational and training programs for individuals in the United States, contribute to health care advances and accessibility, help to provide affordable housing for young people or senior citizens in the United States, contribute to productive use of natural resources and improving the environment, or strive to fulfill a request by a government agency in the United States. In applying for a national interest waiver, the individual should include letters from interested parties describing the work to be performed and its importance, any articles or other media coverage that discusses the work to be performed, or any other documents that describe the proposed work and the importance of its potential impact.
To satisfy the second requirement, an individual must show that the work he or she plans to perform is beneficial not only to his or her company or the local community in which the individual will be working, but to the nation as a whole, or that it contributes to some national goal. Generally, this requirement can be met if the individual can show that the work will be beneficial in an area of substantial intrinsic merit, i.e., satisfy the first national interest requirement, with regards to at least some parts of the United States, and that it will not be contrary to the interests of any other part of the United States. For example, an individual seeking admission to perform maintenance or construction of bridges and other means of transportation in just one major city may still be considered to have a national impact because it serves the national interest of having proper means of transportation to and from different regions. However, if an individual seeks to work in an area in which his or her impact would solely benefit the local community, such as a teacher seeking to teach at one local school or a general surgeon seeking to work at one local hospital, this would not be considered to have a national impact.
Finally, the individual must demonstrate to the agency that it is in the United States’ national interest to waive the requirement because the benefit of the individual’s proposed work outweighs the interests the labor certificate is designed to protect. In essence, what the individual must show is that the work he or she plans to perform will provide a specific, substantial benefit to the field and that the applicant has an ability to perform this work to a substantially greater degree of success than a United States worker. To meet this requirement, the individual should focus on the exceptionality of his or her skills, whether there is a lack or scarcity of other individuals who are as qualified as the applicant to perform this work, and the specific experiences that make this individual so exceptionally qualified that his skills are necessary to the performance of this work and to the project as a whole. This is a difficult requirement to satisfy, as the balancing test essentially requires the applicant to show that it would be detrimental to the United States’ interests to not grant the waiver.
An individual may self-petition for a national interest waiver, as it is not required that he or she have a job offer, but just that the applicant intends to embark on some project or area of work that will be beneficial to the United States.
Individuals who qualify for EB-3 status are given third preference in granting permanent residency to the United States. Individuals can qualify for EB-3 status if they fit into any of the following categories: skilled workers, professionals, or unskilled workers.
An individual may qualify for EB-3 status as a skilled worker if he or she can demonstrate that they have at least two years of experience or training in their job and that he or she is performing work for which there are not qualified workers available in the United States.
The job the individual seeks to perform in the United States may be a job that generally does not require any formal education, but requires at least two years of experience. It must also be full-time and permanent, as opposed to a temporary or seasonal. Some examples of jobs that may fall into this category are technical jobs, reporters and journalists, graphic designers, or construction supervisors.
In addition to showing that the job meets the requirements, the individual must show that he or she possesses the required experience. This may be shown by proving the individual has at least two years of relevant work experience, two years of vocational training, or, although the job may not require it, that the individual has equivalent post-secondary educational training.
Because an offer of employment is required for this type of EB-3 status, the petition must be filed by an employer and an individual may not self petition.
To qualify for EB-3 status as a professional, the applicant must show that the job to be performed requires a baccalaureate degree, that the applicant possesses a United States baccalaureate degree or its foreign equivalent, and that there are no qualified workers available in the United States.
The petitioner must show that the job the individual seeks to perform actually requires a baccalaureate degree. Moreover, the job must be full-time and permanent.
Unlike with other categories of employment-based permanent residency, EB-3 professional status requires that the individual actually possess the required degree. A showing of equivalent combination of experience and education will not suffice to meet this requirement.
Because an offer of employment is required for this type of EB-3 status, the petition must be filed by an employer and an individual may not self petition.
The unskilled workers category of EB-3 status applies to individuals who are seeking to perform a job that does not require two years’ experience. Individuals will be admitted under this category if they can show that at the time the petition is filed they are capable of performing the work and that there are no qualified United States workers.
The job that the applicant seeks to perform must be full-time and permanent.
For all three categories of EB-3 status, the petitioner is required to show that there are no qualified workers available in the United States. To show this, the employer must provide proof that it made efforts to recruit United States workers and that there were no qualified applicants to the position. It enough to show that the foreign individual is more qualified than any of the United States applicants. If any United States applicant meets the minimum experience or educational requirements for the position, then this requirement for EB-3 status is not met.
The Department of Labor, however, has determined that there are some specific occupations for which the United States has a lack of qualified workers, and those occupations receive special treatment. These occupations are listed in the Department of Labor’s Schedule A, and include physical therapists, professional nurses, college and university professors, and occupations requiring exceptional abilities in the sciences, arts, and performing arts.
Occupations listed in Schedule A are given special treatment in that employers are only required to make minimal efforts to recruit United States employees before they can successfully petition for a foreign worker to receive EB-3 status. The minimal recruitment efforts require that the employer: (i) obtain a certified Form 9141 Prevailing Wage Determination; (ii) post a Notice of Filing for at least 10 business days in at least two conspicuous locations within the potential worksite; and (iii) post notice of the position in all in-house media communications for at least 10 consecutive business days. The employer is not required to make any efforts to recruit outside of its own workplace.
The Department of Labor also previously had made what it called Schedule B, which was a list of occupations that it predetermined would not qualify for EB-3 status because of an abundance of qualified United States workers. This list, however, has been eliminated, and now employers may petition for any position under EB-3 and the petition will be judged on its ability to meet the requirements.