EB-1B FAQ

There are few visas that carry as many advantages as the EB-1 classification of green cards. Understanding all that goes into the green card process, however, rarely happens overnight. If you think that the EB-1B green card is the right choice for you but don’t know where to start, you can see if any of the questions in this EB-1B FAQ match the information you’re looking for.

EB-1B Frequently Asked Questions

To help order the EB-1B FAQs, we will combine the questions into the following relevant groups:

Qualifications

Q. Who qualifies for an EB-1B green card?

The EB-1B green card is reserved for those who qualify as “outstanding researchers and professors”. These people have made major contributions to their field and have worldwide renown.

Q. I don’t have a permanent job offer, can I still apply?

No. Unfortunately, you must have a permanent job offer from a U.S. employer in order to apply for an EB1-B green card.

Q. How does the USCSI define “outstanding”?

The USCIS defines  the term “outstanding” as demonstrating “international recognition for your outstanding achievements in a particular academic field”. In addition to this, you must show that you have worked for at least 3 years in your field either teaching or researching.

There are six criteria that can qualify you as an outstanding researcher or professor. To be eligible, you need to fulfill at least two of them.

  • Having won a major prize or award in your field.
  • Being a member of an exclusive organization or association that requires outstanding achievement for entry.
  • Having material published about your work in major publications.
  • Serving as a judge of the work of your peers either individually or on a panel.
  • Having made significant academic or scientific contributions to your field.
  • Authorship of books and/or articles of a scholarly or scientific nature that are published in academic journals.

Q. How do I prove that I’ve won a major prize?

Your prize or award should be internationally or nationally recognized. This means that local awards or scholarships do not count. Also, if you are planning on using a prize that was awarded to a team you worked on, the prize will most likely hold less weight than an individual award.

Q. What kind of evidence should I show that I have an exclusive membership?

Be sure to include the membership qualifications with your petition that require outstanding achievement. If the people who decide on new members are also experts in your field, your petition stands a better chance for approval.

Q. What kind of published material by others can be submitted in support of my work?

The USCIS will place weight on material that is published by a major media network or publication that provides your name in reference to your work. On the other hand, not much weight will be given on material that simply names a team that you worked with to complete the work.

Q. What will the USCIS accept that indicates that I was a judge of the work of my peers?

If you served as a judge or a workshop leader at a national or international event, this will go a long way in proving that you are outstanding. Be sure that you indicate what part you had to play in the judging.

Q. What evidence of my original research contributions will be accepted?

This criteria can be fulfilled by a wide variety of evidence as all research and teaching situations differ. On the whole, however, your work needs to have been original and must be related to your field. Work with your immigration attorney to determine what kind of research will make your case eligible for an EB-1B.

Q. Can I file for the EB-1B and the EB-1A at the same time?

Yes. In fact you can file for multiple green cards simultaneously to increase your chances of approval.

Q. If I qualify for both the EB-1A and the EB-1B, which should I choose?

The answer to that question depends on your circumstances. The EB-1A does not require a job offer and so does not require an employer. On the other hand, it is the more difficult visa to obtain. As mentioned above, it may be best to file for both at the same time.

Q. What are the requirements surrounding my intentions in the U.S.?

In order to qualify, you must be seeking to enter the U.S. with the intention of attaining tenure as a professor or pursuing a similar status as a researcher. You must also be intending to work in the field in which you have demonstrated your outstanding achievement.

Q. Do I need letters of recommendation in order to qualify?


While it is not officially a requirement of the EB-1B, having letters of recommendation from distinguished peers and tutors is often instrumental in having your case approved. Ask your immigration attorney if these letters would be necessary for your case.

Benefits

Q. Do I need a job offer or PERM Labor Certification?

Unfortunately, the EB-1B does require a job offer for application. The EB-1A, the EB-2 NIW and the EB-5 are the only employment-based green cards that do not require a job offer.

However, the EB-1B does not require a PERM Labor Certification. This is a major benefit over the EB-2 or EB-3 since a PERM is difficult to obtain and involves an extensive job recruitment process.

Q. What is the validity period for an EB-1B?


Once you are issued your EB-1B, it will be valid for ten years, far longer than any nonimmigrant visa. At the end of that period, you will need to refile for a replacement green card.

To circumvent the need to refile, you can apply for citizenship through naturalization.

Filing

Q. Who is the petitioner in an EB-1B case?

The petitioner is your employer. Only EB-1A, EB-2 NIW, and EB-5 applicants can self-petition. Whichever employer offered you the job should be your sponsoring or petitioning employer.

Q.  Which forms must be submitted?

The initial petition is the I-140. If you decide to use premium processing, you will need to submit the I-907 form.

For those who choose to adjust their status, the form for that process is the I-485. If you choose to go through consular processing, you will need to complete the DS-260 online immigrant visa application.

Q. Where should these forms be submitted?

The DS-260 form must be submitted to the Department of State. All other forms are filed with the United States Citizen and Immigration Services (USCIS). However, not all immigration cases are the same. Speak with your immigration attorney to learn where your forms should be sent.

Q. Do I need other documentation besides these forms?

Yes. You will need to submit evidence that proves that you fulfill at least two of the criteria for an outstanding researcher or professor. For obvious reasons, this documentation varies from person to person. Your immigration lawyer will help you decide what should be submitted alongside your forms.

Q. What happens if I lose my job after getting my EB-1B?

There is a chance that you could lose your status if you lose your job or switch employers soon after obtaining permanent resident status. For this reason, it is advisable to work with a sponsoring employer that you plan to work with for a significant period of time or to apply for a green card that does not require a job offer like the EB-1A or EB-2 NIW.

Q. What if I change jobs while my petition is pending?

In that case then you will need to have your new employer file a new petition on your behalf. Your sponsoring employer must be the one that you will be working for in the U.S.

Q. How will the adjudicating officers evaluate my case?

Under normal circumstances, the USCIS will implement a two-pronged approach when evaluating your petition. The first prong will involve having the evaluating officer look over your petition to ensure that all information has been completed and that you have submitted evidence for at least two of the above-mentioned criteria. If this is not the case, your petition is likely to be rejected

In the second prong, the officer will evaluate that evidence to determine if it is sufficient to prove that you are a researcher or professor with outstanding achievement. It is at this stage that an officer is likely to issue an EB-1B denial if he or she does not feel that the evidence is adequate.

Q. How long will it take for my petition to be processed?

On average, the I-140 takes about six months to be processed. However, this depends heavily on the case load of the USCIS service center that is processing your petition.

Q. Will premium processing help?

Yes. Fortunately, you are able to use the premium processing service to shorten your EB-1B petition’s processing time to 15 calendar days. Keep in mind that this only applies to the petition and does not expedite any other part of the process.

Q. Is premium processing available for all green card petitions?

Unfortunately, no. Premium processing is unavailable for all EB-1C and EB-2 NIW cases.

Q. If I use premium processing, will my approval changes go up?

No. Premium processing only shortens your processing time and has no bearing on whether or not your petition is approved.

Q. What do I do once my petition has been approved?

If the USCIS approves your petition, you will have two options for your next step:

Adjustment of status: This involves filing an I-485 form with the USCIS and waiting for approval before having your status automatically adjusted.

Consular Processing: This involves going through a U.S. consulate or embassy to obtain your green card.

Q. How long will my I-485 take to process?

Like the I-140, the I-485 takes an average of six months to process but also depends on the workload of the service center that is responsible for your case.

Q. I am under J-1 status, will I still be subject to the 2-year home residency requirement if I apply for an EB-1B?

Yes. In order to bypass the home residency requirement, you will need to obtain a J-1 visa waiver. The EB-1B will not absolve you of this requirements.

Consular Processing

Q. What is the difference between consular processing and adjustment of status?

Adjustment of status is for those who are already in the U.S. under nonimmigrant status (such as an O-1 or H-1B visa). All the applicant needs to do is submit an I-485 form to have their status automatically changed.

On the other hand, consular processing is mainly for those that are outside the U.S. at the time that their I-140 is approved. The applicant must make an appointment with the designated U.S. consulate or embassy in their home country before receiving a green card.

Overall, consular processing tends to be cheaper and less time-consuming. However, adjustment of status does not require leaving the U.S. or making an appointment.

Q. What will happen at my appointment?

Your biometrics will be taken and you will be given a one-on-one interview with a consular officer to determine if your situation and credentials are legitimate.

Q. Does everyone have to go through the interview?

In the past, not every applicant was required to submit to a consular interview. However, with the new political administration, we may be able to anticipate stricter regulations surrounding the necessity for an interview.

Q. What questions can I expect at the interview?

The consular officer will likely ask you questions about you, your work abroad, your credentials, your employer, your work and living arrangements in the U.S., and your background.

If the officer clears you, then you will be able to enter the U.S. as a legal permanent resident under EB-1B status.

Q. What documents should I bring?

In addition to a printed copy of your DS-260 confirmation page and receipt of payment, you should also bring the following items to your consular appointment:

  • A valid passport along with any expired passports
  • A portrait photo of you according to the Department of State’s requirements.
  • Supporting documents that you will use as evidence to prove that you are an outstanding researcher or professor.
  • Your CV or resume

Processing Fees

Q. What are the fees for my EB-1B?

Here is a quick breakdown of the EB-1B fees if you are filing to adjust your status:

  • I-140 basic filing fee: $700
  • I-485 filing fee: $750-$1,450. This fee varies depending on your age. Take a look at this chart from the USCIS to see where you fall.
  • Biometrics fee (if applicable): $85

Added up, the total cost for an EB-1B visa through adjustment of status is usually between $1,535 and $2,235 depending on where you are placed on the I-485 fees and whether or not you are required to have your biometrics taken.

If you are going through consular processing, you will need to pay these fees:

  • I-140 basic filing fee: $700
  • DS-260 filing fee: $230
  • Affidavit of Support fee(if applicable): $88
  • Biometrics fee: $85

All together, the total cost in fees for the EB-1B should be around $1,103 for consular processing. Because this all depends on your unique situation, it is advised that you consult your immigration attorney before paying any fees.

Q. How should I make these payments?

The payments to the USCIS should be made out in a cashier’s check or money order. Most attorneys agree that, in order to avoid confusion, you should avoid combining your payments into one check or money order.

Q. What about consular processing?

The payment for the DS-260 should be made according to the regulations of the Department of State. The same goes for the biometrics services fee and the affidavit of support fee. You should also take into account traveling fees to and from the consulate.

Q. How much is premium processing?

The premium processing fee is $1,410.

Q. Does the USCIS give refunds?

There are three main situations in which the USCIS will issue a refund:

  • An unnecessary form was requested that required a fee payment.
  • The requested fee was greater than that which is posted on the USCIS fee schedule.
  • The USCIS failed to process a petition with premium processing within the 15 calendar day time frame.

Q. What are the immigration attorney fees?


The fees for an immigration attorney vary depending on quality an location. To see the flat fee that our office charges for EB-1B green cards, visit our fees page.

Priority Dates

Q. What is a priority date?

Your priority date is the day that the USCSI receives your I-140 petition.

Q. What should I look for when determining if my priority date is current?

Each month, the Department of State releases the latest “final action dates” in its visa bulletin. Be sure to check this bulletin whenever it arrives. When your priority date matches or passes the final action dates given in your category and country, your date will be considered “current”.

Q. Are the EB-1B dates current right now?

This depends on when the question is being asked. As of the writing of this page, all countries except for India and China have current priority dates in the EB-1 category. However, in months past, the first preference level (EB-1) has had current dates across the board. Keep checking to see if your date is current.

Q. Why does the waiting time vary by country?


Each year, the Department of State allots a certain number of visas to be given in each category to each country. Because there are usually more green card applicants from India and China, these countries tend to build up a backlog as more applicants apply than there are available visas.

Q. What is the next step after my priority date is current?

If you see that your priority date is current, you must wait for your I-140 to be approved. Once that happens, you can move on to adjusting your status or going through consular processing.

Denial

Q. What is the difference between denial and rejection?

If your petition is rejected, that means that there was a technical problem with your petition. Whether it was because of a mistake in one of the fields or a problem with the payment, a rejection means that no officer has examined your case.

On the other hand, a denial means that, after evaluating your case, an immigration officer has decided that you are not qualified to receive an EB-1B green card.

Q. What are some common reasons for EB-1B denial or rejection?

Some of the reasons that we see for EB-1B rejections and denials are:

  • Mistakes in the petition (i.e. incorrect, inconsistent, or missing information)
  • Existence of a criminal history either in the U.S. or abroad.
  • Issues with fee payment
  • The candidate is not qualified for an EB-1B green card.

Q. Is it possible to appeal the denial?

Yes. If you adjusted your status and your petition was denied, you can turn to a third party, the Administrative Appeals Office (AAO), to take a look at the case and either uphold or overturn the officer’s decision.

However, keep in mind that the AAO has a long track record of upholding the decisions of immigration officers. Unless you and your attorney have new evidence to show that bolster’s your case, you may want to consider a different option.

If you have gone through consular processing and your case was denied, you will likely see a sentence in the denial letter stating that this decision cannot be appealed.

Q. Can I make a motion on the decision?

Under most circumstances, you should be able to make one of two kinds of motions:

  • A motion to reopen your case means that new evidence has come to light that would warrant having the same evaluating officer take a second look at your case.
  • A motion to reconsider means that you and your attorney believe that the officer’s decision was incorrect. Be prepared to argue this belief through the regulations of the law.

Q. What are some alternatives to the EB-1B if my petition is denied?

If your petition was denied and you do not have any new evidence or changing circumstances to warrant an appeal or a motion, you may want to consider a green card other than the EB-1B.

There are two employment-based green cards that have less stringent requirements for eligibility. The EB-2 is for those that either possess an advanced degree or exceptional ability. In this case, some of the evidence used for the EB-1B could suffice for the EB-2.

The EB-3 can also be a viable option if your EB-1B is denied. This is designed for bachelors degree holders as well as skilled and unskilled workers. However, the priority dates in this category often require long waiting periods.

You should also keep in mind that both the EB-2 and the EB-3 both require a PERM Labor Certification. This means that your employer will need to run several job ads in an effort to find a qualified U.S. worker to fill the position instead of you.

Q. I’ve received an EB-1B RFE, what do I do next?

Sometimes, rather than issue a rejection or denial, the USCIS will give you a second chance by issuing a Request for Evidence (RFE). The RFE will require a response within a given time frame that should include the evidence necessary to continue with the processing of your petition.

The first thing that you should do after receiving an EB-1B RFE is to take it to your immigration attorney. That way, you can be sure that an expert is handling your case. Your lawyer will create a satisfactory response to the RFE and will work to take advantage of this second chance and to have your case approved.

How Our Immigration Attorneys Can Help

As you can see, applying for a green card is no walk in the park. Whether you’re in the process of finding the right evidence to prove that you are an outstanding researcher or your simply concerned about your priority date, no one should go through the process alone.

The EB-1 attorneys here at SGM Law Group have years of experience helping people from all over the world find their home here in the U.S. through employment-based immigration. If you have a question that wasn’t covered in this EB-1B FAQ, you can ask it to one of our attorneys in person by filling out this contact form and scheduling your consultation with out office today.

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