Employment Based Preference Categories without a Labor Certification Requirement

First Preference Employment-Based Immigration (EB-1)

A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports.

There are three types of EB-1 petitions:

Alien of Extraordinary Ability, or EB-1(a)
Outstanding Researcher/Outstanding Professor, or EB-1(b)
Managers and Executive Transferees, or EB-1(c)

The most notable advantage for those who qualify for an EB-1 petition is the lack of a Labor Certification requirement. In an EB-1(a) petition, a permanent job offer is not required, and an alien may petition for immigration by herself. However, in EB-1(b) and EB-1(c) petitions, a permanent job offer is required. In other words, a US employer must be the petitioner for EB-1(b) or EB-1(c) cases.

These types of petitions are very complicated and very labor intensive. The business immigration attorneys at Byrd & Associates can review your credentials, either CV or resume, and advise you on your potential for success. With these types of petitions, help from an experienced immigration attorney is highly advised for a successful outcome. We encourage you to contact the firm for a confidential consultation with an experienced business immigration attorney. Please contact us in our San Jose office or San Francisco office or call us Toll Free 1-800-794-4546 or 408-572-5657 to schedule a confidential telephone or in-office consultation. You can also contact us conveniently online.

Foreign Nationals of Extraordinary Ability (EB-1(a))

An Alien of Extraordinary Ability, or EB-1(a), classification applies to aliens who can demonstrate that they "have risen to the very top of their field of endeavor." To establish that he is a top member within his respective field, evidence of receipt of an internationally recognized award such as the Nobel Prize or an Academy Award is accepted.

In the absence of an internationally recognized award, one can establish oneself as an Alien of Extraordinary Ability by providing documentation of any three (3) of the following:

Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
Membership in associations which require outstanding achievements of their members, as judged by recognized national or international experts in their fields.
Published material in professional/major trade publications or major media about the alien and relating to the alien's work field.
Participation as a judge (individually or as a part of a panel) evaluating the work of others.
Original scientific, scholarly, or artistic contributions of major significance.
Authorship of scholarly articles in professional journals or other major media.
Artistic exhibitions/shows.
Leading role within an organization/establishment with a distinguished reputation.
High salary/compensation for services in comparison to others.
Commercial success within the performing arts, as shown by either box office receipt figures or cassette, compact disk, video, or DVD sales figures. The alien must also show that the alien's admittance into the United States will substantially benefit the United States in the future.

In addition to the above criteria, the alien must prove that he will continue to pursue his work within the United States. Examples of supporting documentation include letters from prospective employers, a statement from the alien detailing his future work plans and other evidence of future work commitments.

Outstanding Researcher or Professor (EB-1(b))

An "Outstanding Researcher or Professor" EB-1(b) petition is for those who are internationally recognized as outstanding in a particular scientific or scholarly field. There are three (3) main requirements for someone seeking a petition as an "Outstanding Researcher or Professor,” including:

International recognition as being outstanding in a specific academic field.
At least three years of relevant research or teaching experience: Research or teaching experience obtained while in pursuit of an advanced degree, such as a Ph.D., can be counted toward the three year requirement, but only 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. The alien must document his work history with letters from current and/or former employers describing work duties and years of employment.
A job offer for a permanent research position or a tenured or tenure-track teaching position: Generally, the job offer is given by a university or other similar academic or scientific institution, but it can also be offered by a private employer. If the offer is from a private employer, the employer must have at least three full-time researchers along with accompanying documentation supporting their accomplishments within the field.

To be recognized internationally as an Outstanding Researcher or Professor in one’s field requires at least two (2) of the following types of evidence:

Receipt of major prizes or awards for outstanding achievement.
Membership in associations which require outstanding achievements of their members.
Published material in professional publications written by others about the alien's work (more than merely citing the alien's work).
Participation as a judge (individually or as a part of a panel) evaluating the work of others.
Original scientific, scholarly, or artistic contributions in the field.
Evidence of authorship of scholarly books/articles in journals with an international circulation.

Multinational Executives and Managers (EB-1(c))

Certain multinational executives or managers can obtain their green cards by showing that they served for at least one year in another country in an executive or managerial position with the parent, subsidiary, or affiliated company of a U.S. company. This process requires the individual to have a permanent job offer from the U.S. company to work in an executive or managerial position.

Qualifications

To qualify for a green card as a Multinational Manager or Executive, you must show that you were employed by a company affiliated with your current U.S. employer as a manager or executive outside the U.S. for at least one year out of the three years before your transfer to the United States.

An executive is defined as someone who:

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.

A manager is defined as someone who:

Manages an organization, 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; for supervisors of others, has the authority to hire and fire or recommend such actions; for those who manage a function of the organization, must be employed at a senior level within the organizational hierarchy or with respect to the function managed; and exercises direction over the day-to-day operations of the activity or function.

An individual is not considered to be acting as a manager or executive merely on the basis of the number of employees that he or she supervises, directly or indirectly. The Citizenship and Immigration Service (CIS) considers the reasonable needs of the organization, the overall purpose of the company and function, and the company's stage of development in determining whether a position qualifies. First-line supervisors generally are not considered managers or executives, without other evidence of their qualifications.