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Petitioners file Form I-140 Petition for Immigrant Visa along with supporting documentation showing that the beneficiary is properly categorized as an EB-1 worker, and the worker, if in the U.S., may file Form I-485 Application to Adjust Status. There are currently three accepted subcategories of priority workers: aliens of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.

Priority Worker Categories

The employment-based first preference category is also known as the “priority worker” or EB-1 category. Workers falling into EB-1 do not need to obtain a labor certification from the Department of Labor prior to filing the immigrant visa application. Petitioners file Form I-140 Petition for Immigrant Visa along with supporting documentation showing that the beneficiary is properly categorized as an EB-1 worker, and the worker, if in the U.S., may file Form I-485 Application to Adjust Status. There are currently three accepted subcategories of priority workers: aliens of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.

Person of “extraordinary ability in the sciences, arts, education, business or athletics”
In order to qualify for inclusion in this subcategory, the foreign national must be of extraordinary ability in the sciences, arts, education, business or athletics, seek entry to continue work in that same area of extraordinary ability and the person’s entry will substantially benefit the U.S. The foreign national in this subcategory must have sustained national or international acclaim and be widely recognized in his or her field of endeavor. Scrutiny is high in this category as it is meant to cover a very small percentage of people who have risen to the top of their field. The foreign national must plan to continue working in the same field. This subcategory does not, however, require a job offer and foreign nationals are allowed to file the immigrant visa petition on their own behalves.

“Extraordinary ability” may be shown by a one-time achievement, evidenced by a major, internationally recognized award (such as the Nobel Prize). In the alternative, the petitioner must provide evidence from three of the following ten categories:

  • Receipt of lesser nationally or internationally recognized prizes/awards for excellence
  • Membership in an association which requires outstanding achievement as a prerequisite, as judged by recognized national or international experts
  • Published material about the worker in a professional or major trade publications or other major media
  • Material showing the worker was a judge of the work of others in the field
  • Original scientific, scholarly, artistic, athletic or business-related contributions of major significance
  • Authorship of scholarly articles in the field
  • Display of the foreign national’s work at artistic exhibitions
  • Performance of a leading or critical role for organizations with a distinguished reputation
  • High salary or remuneration in relations to others in the field
  • Commercial success in the performing arts as shown by box office receipts or record, cassette, compact disc or video sales

Note that even if the petitioner submits evidence of 3 of the above 10 categories, such evicence may not be dispositive, may still fall short of proving extraordinary ability.

Outstanding Professors and Researchers
Professors or researchers who are outstanding in their academic field also fall into the EB-1 category. In this subcategory, the worker should be either tenured, or in a tenure-track position, or be in a position of indefinite or unlimited duration in which the worker would ordinarily have an expectation of continued employment absent good cause for termination. This subcategory also requires that the worker have an offer of employment from a U.S. university or institution of higher learning offering a tenured or tenure-track teaching position in the worker’s field; an offer of employment from a U.S. university or institution of higher learning of a permanent research position in the worker’s field; or an offer of employment from a department, division or institute of a private employer of a permanent research position in the worker’s field. In the last case, the private employer must show that it employs at least three full-time persons in research positions and that it has achieve documented accomplishments in an academic field.

Evidence must accompany the immigrant visa petition showing that the worker has at least three years of experience in teaching and/or research in the academic field. Experience in teaching or research while working on an advanced degree is acceptable only if the degree has actually been acquired and the teaching duties where such that the worker had full responsibility for the class taught or if the research conducted toward the degree was recognized within the academic field as outstanding.

Finally, additional evidence must be submitted consisting of at least two of the following six types:

  • Documentation of the receipt of major prizes or awards for outstanding achievement
  • Documentation of membership in associations in the field which require outstanding achievements of their members
  • Published material in professional publications written by others about the worker’s contributions
  • Evidence of the worker’s participation as the judge of the work of others in the same or an allied academic field
  • Evidence of the worker’s original scientific of scholarly research contributions to the academic field
  • Evidence of the worker’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

As with the aliens of extraordinary ability subcategory, merely submitting evidence to show that the beneficiary meets the requisite criteria will not necessarily be sufficient to show that he or she is classifiable as an outstanding researcher. The standard laid out above sets the “minimum” requirements for qualification in this subcategory.

Certain Multinational Executives and Managers
The third and final priority worker subcategory is reserved for multinational executives or managers. To establish qualification, the foreign national must have been employed abroad by the parent, subsidiary or affiliate of the U.S. company that seeks to employ the foreign national. The prospective U.S. employer must have been doing business for at least one year and provide documentation of its relationship to the foreign entity. If the worker is outside the U.S., the petition must show that the individual held an executive or managerial position in the foreign entity in the immediate three-year period preceding the filing of the application. If the worker is already in the U.S., the petition must show that individual held an executive or managerial position in the foreign entity in the three-year period immediately precede his or her entry to the U.S.

A person is considered employed in an executive capacity if he or she:

  • Directs the management of the organization or a major component or function of the organization;
  • Establishes the goals and policies of the organization, component or function;
  • Exercises wide latitude in discretionary decision-making; and
  • Receives only general supervision or direction from higher-level executives, the board of directors or stockholders of the organization.

A person falls into the managerial category if he or she:

  • Manages the organization, or a department, subdivision, function or component of the organization;
  • Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
  • Has the authority to hire and terminate, or recommend such actions as well as other personnel actions (such as promotion, leaves of absence and bonuses), or if he or she does not directly supervise any other personnel, functions at a senior level within the organization or with respect to the function managed; and
  • Exercises direction over the day-to-day operations of the activity or function for which the worker has authority.

Note that a first-line supervisor is not considered to be acting in a managerial capacity unless the employees supervised are professional in nature. The number of employees supervised or directed, by itself, is insufficient for finding that the worker acted in an executive or managerial capacity. The analysis must begin and end with the job functions and duties and the nature of the supervision or direction provided.

 

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