EB-1 Priority Workers

The EB-1 green card, which is also known as the priority workers immigrant visa, is the first preference level for the employment-based immigrant visa category. Its relatively easy process has made it one of the most preferred routes for foreign nationals to achieve permanent resident status. This is because, unlike other visa types in the same category, employers filing an EB-1 petition on behalf of foreign national employees do not need to go through the rigor of acquiring labor certification.

The EB-1 priority workers visa has three subcategories which are the EB-1A for workers of extraordinary ability; the EB-1B for outstanding professors and researchers; and the EB-1C for multinational executives and managers. Anyone who qualifies for any of these three EB-1 subcategories is considered a “priority worker”. This article explains the requirements for each EB-1 priority workers subcategory.

Policy Update- On September 12, 2023 USCIS updated the manual to offer clarifying guidance on examples of evidence that may satisfy the relevant criteria for employment first-based preference applicants, as well as how USCIS officers evaluate the totality of the evidence for eligibility. See the complete details in this EB-1 policy update post. 

Requirements for EB1-A: Workers of Extraordinary Ability

To qualify as an EB-1A subcategory priority worker, you must be able to show extraordinary ability in sciences, arts, education, business or athletics. You must also have recorded a publicly known national or international accomplishment in any of these fields. This means that your achievements must have established you as a well-known leader in that particular field.  

As a foreign national, you are not required to have a job offer from any U.S. employer in order to be qualified for this category. However, if you have an employment offer, it can serve as a boost to your application process. Your employer can begin the application process by filing the I-140, Immigrant Petition for Alien Workers on your behalf. In the absence of an employer, you can file the I-140 for yourself and self-petition.

Qualifying as an EB-1 Priority Worker With Extraordinary Ability

You are required to meet at least three of the following listed criteria to prove that you have extraordinary ability in your field (or you can show proof of past significant nationally or internationally recognized achievement such as an Oscar, Pulitzer Prize, or Olympic medal):

• Proof of membership in associations in your field, which demand exceptional achievement of their members.
• Proof of published material about you in any professional or major trade publications or media.
• Proof that you have served as a judge of other people’s work in your field either as a member of a panel or individually.
• Proof of scientific, scholarly, artistic, athletic, or business-related contributions to the field.
• Proof of your authorship of scholarly journals or articles in professional trade publications or media
• Evidence that your work has been showcased at major artistic exhibitions
• Proof of your outstanding leadership performance or filling a critical role in reputable organizations.
• Proof that you command a high salary compared to others in the field.
• Proof of your commercial successes in the performing arts.

What Applicants Need to Bear in Mind

• You will need a job offer from a United States employer to demonstrate you are an outstanding researcher or professor and prove two of the above requirements.
• You will also need to provide evidence of an internationally recognized award such as an Olympic medal or Oscar award.
• Lastly, no job offer is required if you have extraordinary achievements.

To apply for an EB-1 visa, your petitioner must be an American employer, and you must have been in business for a minimum of one year as the employer that hired you abroad or a subsidiary or an affiliate of that employer.

Requirements for EB-1B: Outstanding Professors and Researchers

To qualify as an EB-1B priority worker, you must be known to have international recognition for being outstanding in a particular academic field. You are to show that you have a minimum of three years experience in that particular academic field and that you are coming to the United States to work through a tenure, tenure track teaching, or relevant research position at a U.S. university, other institution of higher education, or a research institute.

Examples of evidence that an applicant is an outstanding researcher or professor include:

• Proof of participation individually or on a panel as a judge of other people’s work in an allied or the same academic field.
• Proof of published material written by other people in professional publications about the alien’s work in the field.
• Proof of membership in associations that demand outstanding achievement from their members.
• Evidence of original scholarly or scientific research contributions in the academic field.
• Evidence of receipt of major awards or prizes for outstanding achievement.
• Evidence of authorship of scholarly articles or books in a certain field.

Qualifying as an EB-1B Priority Worker

Firstly, you will need a job offer from the institution. If your prospective employer is a private entity, the organization must prove to be a ‘qualified employer’ under this EB-1 subcategory because not every organization is qualified to file an EB-1B petition on an employee’s behalf. The private organization must have at least three full-time researchers and prove to be reputable through records of past achievements in research.

Additionally, you will also need to present your past achievements and contributions to the academic field. Some of the supporting evidence needed to demonstrate that includes major prizes or awards for achievement, membership of a prestigious association, and/or published material in professional publications written by others about your work in the academic field. You may also present your scientific or scholarly contributions to the field such as books or articles in scholarly journals with international circulation.

Requirements for EB-1C: Multinational Executives and Managers.

To qualify for the EB-1C subcategory, you must have been employed outside the United States by an EB-1C qualified corporation for at least one year, and have worked for at least three years in an executive or managerial position for the organization. However, if you are already in the U.S., you may still qualify for this subcategory provided you have worked for at least one year of those three years for the same organization in any of its offices abroad.

The organization must be a branch, affiliate, or subsidiary to the company you are coming to work for in the U.S. and your employment must be a continuation of the same managerial or executive role. Before an organization can be qualified to file an EB-1C priority worker petition, it must have existed as a business entity in the U.S., an affiliate, or a subdivision of the same corporation that employed you abroad. On your part as an employee, you are also required to meet the USCIS definition of a manager or executive.

USCIS Definition of Managerial Role

The term “managerial capacity” means you:

• Manage a subdivision, department, function, or component within the organization.
• Oversee and control the activities of other employees within the organization.
• Have the authority to hire and fire or recommend the hiring and firing of those you directly supervise.
• If there are no employees working directly under you, you must be functioning at a senior level within the organizational hierarchy.
• Exercise discretion over the day-to-day activity of the position you hold within the organization.
• A first-line supervisor is not considered as managerial role by the USCIS, and will not qualify for EB-1 priority worker green card.

USCIS Definition of Executive Role

The term “executive capacity” means you:

• Direct the management of the organization or a significant function of the organization.
• Are in charge of formulating policies and setting goals for the organization or for a significant component within the organization.
• Have a great deal of leeway to make decisions for the organization or for a component or function within the organization.
• Only receive general direction or supervision from higher executives, the stockholders, or the board of directors of the organization.

USCIS Definition of Multinational Organizations & Subsidiaries

For a company to be qualified as multinational, the organization and its affiliate or subsidiary must be conducting business in at least two countries. Also, the United States must be one of those countries.

To be qualified as a subsidiary to an organization, the parent company must own at least 50% of the entity either directly or indirectly. However, if the parent company has less than 50% ownership, it may still meet the definition provided it can show de facto control over the business entity.

EB-1 Visa Process

Your EB-1 visa process will be initiated by either you or your employer, whoever is saddled with the responsibility of filing of the I-140. Once that is done, and the USCIS receives the petition, you will then:

• Receive a notice from the USCIS stating that your petition has been received and is being processed.
• Receive an I-797C, Notice of Action from the USCIS. The appointment notice will contain the date location and time of your biometric screening. The screening is usually a 15- to 30-minute process, which involves the collection of fingerprints, signatures, photographs.
• Receive a notice of decision once the petition has been processed. This is to let you know if your petition has been approved or not.

If your petition is approved by the USCIS, you will then need to wait for your priority date to read “current.” Once that is done, you can then proceed to apply for Legal Permanent Resident Status. If you are already in the U.S., you will need to file an I-485 to register permanent residence or adjust status.

If you are outside of the U.S., you will need to apply using consular processing at the U.S. consulate nearest to you in that country.

EB-1 Extraordinary Achievements Application Process

The EB-1 extraordinary achievement application is categorized under the EB-1A immigration visa for aliens of extraordinary achievements. However, you need to keep in mind that the labor certification requirement will be waived for EB-1A immigrant visa or EB-1 extraordinary achievements application. This means you can apply for the EB-1A extraordinary abilities application without receiving a job offer from a United States employer and without a labor certification.

This makes the EB-1 extraordinary achievement green card beneficial to professionals with advanced degrees such as post-doctorate research students, scholars, Ph.D. students, and researchers.

Alien of Extraordinary Achievements Application Process

If you do not have a job offer from a United States employer, you can file an EB-1A application yourself. However, if you have a U.S. employer, he or she will be required to apply for you. If you are applying for alien of extraordinary abilities or EB-1 extraordinary achievements, you need to demonstrate extraordinary abilities in athletics, business, arts, science, or education.

Sustained international or national accolades should demonstrate this. Your achievements should also be recognized in your field through extensive publication. To be awarded an EB-1A green card, you need to prove that your activities and presence in the U.S. will benefit the U.S. and that you will also continue working in the field that made you recognized for your efforts.

If you are a post-doctorate student, a Ph.D. student, or you have already completed your Ph.D. studies, you can self-petition and apply for a United States green card without sponsorship from a U.S. employer or the help of a lawyer. Either you or your U.S. employer will have to file Form 1-140 and should have all the required evidence and documents.

EB-1 Visa Filing Fee

The following are the filing fees for EB-1 priority workers:

• I-140: $700 (usually paid for by the employer filing petition on your behalf)
• I-485: $1,225 for applicants between 14 and 78 years old, and $750 for those below 14
• Biometrics fee: $85 (if applicable)
• Attorney fee: You will have to negotiate this with your immigration attorney.
• If you are filing outside the U.S: DS-260 filing fee $230 plus the Affidavit of Support fee of $88

EB-1 Visa Denial

Statistics on the USCIS website show that the EB-1 visa denial rate can be as high as 50% in a single year. Some of the reasons for the high denial rate include filing the wrong and insufficient fees, giving inconsistent information, past criminal records or violation of status, lacking qualifications for the position filed for, and employers’ failure to demonstrate the ability to pay proposed wages. To avoid application denial, you need to ensure that you closely pay attention to every detail in the subcategory you are filing for. However, if you have already been issued a denial notice, you will need to consult your lawyer for guidance.

How VisaNation Law Group Immigration Attorneys Can Help

With the high denial rate of EB-1 visas for priority workers, it is imperative to avoid potential pitfalls when filing your application. With the service of an experienced immigration lawyer, you will stand a good chance of getting your petition approved.

VisaNation Law Group’s expert immigration attorneys have helped many of our clients file their petitions and become EB-1 priority workers in the U.S. If you are about to apply for your visa or your application has been denied by the USCIS, we can help you achieve your dream. To get in touch with a VisaNation Law Group immigration attorney, you can schedule a consultation today by filling out this contact form.