Immigrants who excel in a particular career field and who wish to obtain lawful permanent residence (green card) often have questions about the EB1 visa. Also known as a first-preference visa, the EB1 allows certain foreign nationals to live and work in the U.S. as the result of international recognition, outstanding research work or an offer of an upper management position with an American company. This page is designed to familiarize foreign workers as well U.S. employers with some of the concepts associated with filing for an EB-1 visa. The following topics are covered:
- EB-1 Basics
- Extraordinary Ability EB1
- Outstanding Professors
- Multinational Managers EB-1
- Applying for an EB1 Visa
- Can My Family Apply Too?
- Filing Fees
- Do I Need an Immigration Lawyer?
While this page explores various concepts pertaining to immigration law, it is not intended as a substitute for speaking with a lawyer. The law is complex and can be overwhelming. A qualified legal professional can help you navigate the bureaucratic maze and avoid costly mistakes during the filing process.
Each year the U.S. Department of State (DOS) issues roughly 140,000 employment-based immigrant visas to qualifying applicants. EB-1 visas account for 28.6 percent of employment visas issued annually with no more than seven percent of EB1 visas going to immigrants from any one country.
Unlike other types of visas, there is no requirement for EB1 applicants to first obtain special certification from the U.S. Department of Labor (DOL).
The EB-1 is available to workers who have received international recognition in their chosen field, excel as professors or researchers, or serve in a management or executive position with an American company. There are three subcategories of EB1 visa; each with a unique set of requirements applicants must meet.
1. Extraordinary Ability
While applicants in this subcategory don’t require sponsorship from an American employer in order to obtain an immigrant visa, the bar for admission is still very high. The successful applicant must be able to demonstrate extraordinary ability in science, art, education, business or athletics through sustained national or international acclaim.
You must have a one-time achievement such as an internationally recognized award (Pulitzer, Oscar or an Olympic medal). The extraordinary ability designation is extremely restrictive by design. Visinscaia v. Beers.
If, however, the foreign worker is among the majority of people who hasn’t won such monumental accolades, U.S. Citizenship and Immigration Services (USCIS) lists 10 other criteria for demonstrating extraordinary ability. The successful applicant must show evidence of three of the following:
- Lesser nationally or internationally recognized prizes or awards for excellence.
- Membership in associations demanding outstanding achievement of their members.
- Published material about the applicant in a professional or major trade publication or other major media.
- The applicant has been asked to judge the work of others.
- Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance.
- Authorship in professional or trade publications.
- The applicant’s work has been displayed at artistic exhibitions or showcases.
- A leading or critical role in distinguished organizations.
- Applicant commands a comparatively high salary in his or her chosen field.
- Commercial success in the performing arts.
2. Outstanding Professors and Researchers
Applicants in this subcategory must have three years experience teaching or conducting research in their specific area of expertise. They “should stand apart in the academic community through eminence and distinction based on international recognition.” Policy Memo, USCIS, PM-602-0005.1. They must be entering the U.S. to pursue tenure, or a research position at an institution of higher learning. In addition to being offered a job and sponsorship by a U.S. employer, the successful applicant will also provide evidence of two of the following:
- Major prizes or awards for outstanding achievement.
- Membership in associations requiring outstanding achievement.
- Published material in professional publications written about the applicant’s work in his or her chosen field.
- Participation as a judge of the work of others in the same or allied academic field.
- Original scientific or scholarly research contributions in the chosen field.
- Authorship of scholarly books or articles in journals with international circulation.
3) Multinational manager or executive
Applicants in this subcategory must be employed outside the U.S. for at least one year by a U.S. firm or corporation. This term of employment must occur during one of the three years preceding an offer to work for the same company inside the U.S.
The job offer must also be for a managerial or executive position. This means that he or she
- manages the organization, department, or subdivision,
- Supervises and controls the work of other high-level employees or manages an essential function within the organization,
- has authority to fire and hire, and
- exercises day-to-day discretion over operations.
In this subcategory, the immigrant cannot file a petition on his or her own behalf, but rather must be “sponsored” by the employer. This means the employer must provide a job offer statement detailing the duties of the position and the capacity of the job title. The duties must be detailed specifically. You cannot just list the regulatory language.
The corporation cannot be a shell corporation. It must be performing substantial business, and truly needs a manager. Systronics Corp. v. INS.
Applying for an EB-1 Visa
We highly recommend that you hire a immigration lawyer to ensure this process is done properly as the process of applying for an EB1 visa varies depending on which subcategory a foreign applicant belongs to. Workers with extraordinary ability (subcategory 1) are eligible to file a Petition for Alien Worker (Form I-140) on their own behalf. This form is filed with U.S. Customs and Immigration Services (USCIS). In the case of outstanding professors, researchers, mangers and executives, the employer must file Form I-140 on the immigrant’s behalf.
Can Your Family Apply As Well?
Yes. Based on an applicant’s approved petition, spouses and minor children (under the age of 21), can also apply for immigrant visas. This includes same-sex spouses and their minor children. In each case, family members are required to fill out the appropriate forms, provide necessary documentation and pay any required fees.
The standard filing fee charged by U.S. Citizenship and Immigration Services for Form I-140 is $580. Unfortunately, this petition is not included on the list of forms eligible for a fee waiver based on financial hardship.
Do I need an Immigration Lawyer?
While certain EB-1 applicants are allowed to file their own petition for an immigrant visa, the process can be overwhelming—even to a person of extraordinary ability. A qualified immigration attorney can help a petitioner avoid costly and time- consuming mistakes. If you plan on petitioning for an immigrant visa and want to find out if an lawyer can help you, contact our office for more information.
If you want to learn about other employment-based immigration visas, visit our general employment-based page.