The First Preference EB-1 "Aliens of Extraordinary Ability"

A First Preference permanent residence petition (EB-1) is an employment-based petition for permanent residence for persons of "extraordinary ability".  Aliens with extraordinary ability are those with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation."  The Applicant must be one of "that small percentage who have risen to the very top of the field of endeavor," to be granted this classification. Based on the preference category system the total number of EB-1 immigrant visas available in a government fiscal year (October 1-September 30) is 28.6% of the yearly worldwide limit.

Overview
There are three (3) types of EB-1 petitions.

EB-1(a) Alien of Extraordinary Ability EB-1(a).  Persons applying under the first subgroup are not required to have a job offer but must possess extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. EB-1(a) applicants can file their own petition with the USCIS, rather than through an employer and no labor certification is required for this classification.

EB-1(b) Outstanding Researcher/Outstanding Professor EB-1(b).  Persons applying under the second subgroup must be internationally recognized as outstanding in their specific academic area, have a minimum of three years of experience in teaching or research in the area, and be entering the U.S. in a tenured or tenure track teaching or comparable research position at an DHS/USC institution of higher education. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.

EB-1(c) Managers and Executive Transferees EB-1(c). Persons falling under the final subgroup must have been employed as a manager or executive outside the United States for the same U.S. employer, subsidiary, or affiliate of the U.S. employer for at least one year within the last three years. They must also be entering the United States to work as a manager or executive of the U.S. employer. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.

By law, it is conclusively presumed that the EB-1 applicant does not adversely impact job opportunities of U.S. workers, thus a labor certification is not required. 

The lack of a required permanent labor certification is a great advantage. The labor certification process exists to protect the jobs and job opportunities of U.S. workers having the same minimum qualifications as an alien seeking employment-based permanent residence.  This involves an often complex employer recruitment process for the correct job description and wage rate, and employer record keeping concerning job applicants.

In addition to the time and expense of the labor certification process, an alien risks being denied a labor certification if a U.S. worker with technical qualifications for the employment is found.

EB-1(a)—Extraordinary ability.
The EB-1(a) category was created for aliens who can demonstrate that they "have risen to the very top of their field of endeavor."

A second major advantage of qualifying in the EB-1(a) preference category is a permanent job offer is not required and an alien may self-petition for immigration by himself/herself.  Applicants in the EB-1(b) and EB-1(c) preference categories are also not required to have a permanent labor certification, but they are required to have a job offer.  In other words, a U.S. employer must be the petitioner for EB-1(b) or EB-1(c) cases.

To establish that s/he is a top member within his/her respective field, evidence of receipt of an internationally recognized award such as the Nobel Prize or an Academy Award is accepted.

For example, if the applicant receives a major internationally recognized award, such as a Nobel Prize or Academy Award, s/he will qualify for an EB-1(a) classification. Other awards may also qualify on documentation that the award is in the same class as a Nobel Prize.
Since few workers receive this type of award, alternative evidence of EB-1 classification based on at least three of the types of evidence outlined below, is permitted. The worker may submit "other comparable evidence" if the following criteria do not apply:

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
• Membership in associations in the field which demand outstanding achievement of their members;
• Published material about the alien in professional or major trade publications or other major media;
• Evidence that the alien has judged the work of others, either individually or on a panel;
• Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
• Evidence of the alien's authorship of scholarly articles in professional or major trade publications or other major media;
• Evidence that the alien's work has been displayed at artistic exhibitions or showcases;
• Performance of a leading or critical role in distinguished organizations;
• Evidence that the alien commands a high salary or other significantly high remuneration in relation to others in the field;
• Evidence of commercial successes in the performing arts.

In addition to the above criteria, the alien must prove that s/he will continue to pursue his/her 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.

EB-1(b)—Outstanding Professors and Researchers
Applicants in the EB-1(b) preference category are also not required to have a permanent labor certification, but they are required to have a job offer.  In other words, a U.S. employer must be petition for an EB-1(b) worker.

The EB-1(b) category was created for in order to speed up the process for outstanding professors and researchers to become permanent residents. One of the requirements for EB-1(b) is that the alien beneficiary receives a permanent job offer from the sponsoring employer.

Applicants may opt for filing both EB-1(a) and EB-1(b) petitions simultaneously. Often, one petition will be approved earlier than the other will. In addition, if one petition is denied for some reason, there is still a chance that the other petition may be approved.

Outstanding professors and researchers are recognized internationally for their outstanding academic achievements in a particular field.

In addition, an outstanding professor or researcher must have at least three years experience in teaching or research in that academic area, and enter the U.S. with tenure or tenure track teaching or comparable research position at a university or other institution of higher education. If the employer is a private company rather that a university or educational institution, the department, division, or institute of the private employer must employ at least three persons full time in research activities and have achieved documented accomplishments in an academic field.

Evidence that the professor or researcher is recognized as outstanding in the academic field must include documentation of at least two of the following:

• Receipt of major prizes or awards for outstanding achievement;
• Membership in associations that require their members to demonstrate outstanding achievements;
• Published material in professional publications written by others about the alien's work in the academic field;
• Participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;
• Original scientific or scholarly research contributions in the field;
• Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.

When the publication of scholarly articles is standard in the field of endeavor, the USCIS often does not accept it as one of the three types of evidence and will demand additional evidence.  Examples include publication(s):

• In the most prestigious journals in the field;
• That have been peer reviewed in other publications; or,
• That have been cited extensively by others in the field.

The USCIS has released a memo clarifying the definition of "permanent employment" when considering EB-1(b) petitions.  According to current definitions, "permanent" is defined as "either tenured, tenure-track, or for an indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination."

A major concern for many has been research positions that are based on grant money received yearly.  This usually means that the researchers are employed on one-year contracts.  The USCIS says that if the employer petitioning for the alien shows the intention to continue to get funding and gives a reasonable expectation that funding will continue, then the employment may be considered "permanent."  The USCIS has asked adjudicators to take into consideration the circumstance of the job and its benefits.  If a research position has a term limit of one year, but evidence is provided that the job will be continued beyond that one year, then it can be considered a permanent job.

EB-1(c)—Multinational Managerial or Executive
Applicants in the EB-1(c) preference category are also not required to have a permanent labor certification, but they are required to have a job offer.  In other words, a U.S. employer must be the petitioner for an EB-1(c) worker.

The EB-1(c) category allows international companies to transfer top-level executives and managers to the U.S. as permanent residents.

The following requirements must be satisfied:

• The candidate must have been employed for one year within the past three years by either the oversees affiliate, parent, subsidiary or branch of the U.S. employer and she must work in the United States in a managerial or executive capacity;
• The company must conduct business within the United States and another country in the regular, systematic, and continuous provision of goods or services; and
• The company must have been in existence in the United States for at least one year.

The Managerial Capacity requirement is met if the alien can prove that s/he personally:

• Manages the organization, department, component, or function;
• Supervises and controls the work of other supervisory, managerial, or professional personnel;
• Has authority to make personnel hiring/firing decisions; and
• Exercises discretion over day-to-day operations or function.

The Executive Capacity requirement is met if the alien can prove that s/he primarily:

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

National Interest Waiver (NIW)

An EB-1 applicant may apply for permanent residence through either the Employment-Based "Alien of Exceptional Ability" (EB-1) category, the "National Interest Waiver" NIW category, or both.

In a National Interest Waiver petition, the alien seeks first to show that s/he is a highly qualified individual in her/his field (i.e. "Advanced Degree Professional" or "Alien of Exceptional Ability"). S/He also claims to have the capacity to contribute to the national interest to a greater degree than other highly qualified individuals in the field. Thus, the waiving of the standard job offer and labor certification requirement is warranted.

An applicant is not bound by only one immigrant petition (Form I-140), and may petition under more than one category simultaneously. Thus, applying for a NIW may improve the chances of getting a petition approved. It is impossible to predict whether the USCIS will approve any given case. If, for example, the EB-1 case is denied, the applicant may still get the NIW petition approved.

The National Interest Waiver (NIW) requires no employer sponsor so an alien approved under an NIW will not be bound to any particular employer.

However, the NIW applicant granted permanent residence is required to continue to work in the field of his/her NIW claim and benefit the national interest of the U.S. If s/he ventures into another area, the USCIS may deny your Adjustment of Status (I-485) or subsequently revoke your permanent residency ("green card").

In an NIW petition, the alien seeks first to show that s/he is a highly qualified individual in her/his field (i.e. "Advanced Degree Professional" or "Alien of Exceptional Ability"). S/He also claims to have the capacity to contribute to the national interest to a greater degree than other highly qualified individuals in the field. Thus, the waiving of the standard job offer and labor certification requirement is warranted.

Application for an NIW requires proof of either the "Advanced Degree Professional" or the "Exceptional Ability" requirement. Proof of both is unnecessary. Please note that this fulfills the minimum requirements, which allows the NIW case to be considered. It does not guarantee a successful NIW case.  NIW requires a showing that the applicant’s work would substantially benefit the national interests of the U.S. and should be exempted from the labor certification requirement, if this would be in the "national interest" of the U.S.; hence, a job offer is not required.

USCIS and the appellate review boards consider the waiver of the permanent labor certification with strict scrutiny.  The Labor Certification process exists to protect the jobs and job opportunities of U.S. workers having the same minimum qualifications as an alien seeking employment in the national interest. The petitioner U.S. employer or the self-petitioning alien must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
In general the national interest showing is based on three factors:

1. It must be shown that the alien seeks employment in an area of substantial intrinsic merit.
2. It must be shown that the proposed benefit will be national in scope, i.e., that the alien's prospective contribution will bring benefits not to a limited region in the U.S., but rather provide benefits that impact on a national scale.
3. The petitioner seeking the waiver must satisfactorily demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. It must be shown by the petitioner that it would be contrary to national interest to deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien.

"Substantial intrinsic merit" carries a high burden of proof.  Nearly all jobs provide intrinsic value to national interest. Moreover, the majority of jobs can be applied to a national scale. Thus, successfully demonstrating that national interest is adversely affected by requiring the standard job certification process can be difficult.

Ultimately, an alien who seeks an exemption under an NIW from the job offer requirement must be able to demonstrate that the benefit his or her activity would provide to the nation is so great as to outweigh the nation's interest inherent in completion of the labor certification process. Generally, one must prove that his/her work advances the field rather than provides a substantial impact on an immediate project.
Alternatively, a foreign national physician seeking a NIW is required to work in a medically underserved area (MUA) for five (5) years.

Comparing NIW and EB(1)
While there are many similarities between an alien who qualifies for an NIW petition and an EB-1(a) or EB-1(b) petition (EB-1(c) is quite different), the qualifications for each of the different petitions is actually distinct. In an NIW petition, the alien seeks first to show that s/he is a highly qualified individual in his field (i.e. "Advanced Degree Professional" or "Alien of Exceptional Ability"). /S/He also claims to have the capacity to contribute to the national interest to a greater degree than other highly qualified individuals in the field. Thus, the waiving of the standard job offer and labor certification requirement is warranted. By contrast a person who qualifies in an EB-1 category must show that s/he is a top or outstanding individual in his/her field. According to U.S. immigration law a top or outstanding individual is not required to get a labor certification to achieve employment based permanent residency.