First Preference (EB-1)
First Preference Employment Category (EB-1) under INA §203(b)(1)
Aliens with Extraordinary Ability INA 203(b)(1)(A): This immigrant visa is available for immigrants with extraordinary ability in the sciences, arts, education, business or athletics. These individuals must have attained national or international acclaim through extensive documentation. These individuals must seek entry to continue their work in the field of extraordinary ability. Lastly, the entry of these individuals would benefit the United States. Even though the regulations do not require this, documentation of such benefits may be beneficial. These individuals do not need an employer but must intend to continue their work in the United States. INA §204(a)(1); 8 CFR §204.5(h)(5). Congress intended these visas for a small percentage of persons who have risen to the very top of their field of endeavor. Evidence must include:
- Evidence of one-time achievement such as a major internationally recognized award (Noble Prize); or
- Documentation of any three of the following:
- Receipt of lesser nationally or internationally recognized prizes or award;
- Membership in an association in the field for which classification is sought which requires achievements by their members;
- Published materials about the person in professional or major trade publications;
- Participation as a judge of the works of others;
- Evidence of original scientific, scholastic, artistic, athletic, or business-related contributions;
- Authorship of scholarly articles in the field;
- Artistic exhibitions or showcases;
- Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
- High salary or remuneration in relations to others in the field;
- Commercial success in the performing arts.
Submission of evidence proving three of these categories is not dispositive and United States Immigration & Naturalization Services must still make a final determination of eligibility. The Burden of proof is on the applicant and must be shown by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010).
Outstanding Professors and Researchers under INA §203(b)(1)(B):
These immigrants must be recognized internationally as outstanding in a specific academic area. These immigrants must stand apart through distinction based on international recognition. The person may have 3 years’ experience in teaching or research in his or her area. Experience in teaching while attaining a degree might be used if the person attains it. The person must seek entry for one of the following reasons:
- A tenure or tenure track position within a university or institution of higher education;
- A comparable position at a university; or
- A comparable position to conduct research for a private employer if the latter employs three full time researchers.
The offer for employment must be indefinite or for an unlimited duration. The applicant must submit evidence of at least two of these things:
- Receipt of major prizes or awards;
- Membership in an association that requires outstanding achievement;
- Published materials in professional publications written about the applicant;
- Evidence of judging the work of others;
- Evidence of original scientific research;
- Authorship or articles or books in the field.
Under 8 CFR §204.5(i)(2), a full course of study is defined as a body of specialized knowledge offered for study at United States Universities. USCIS would employ the same process mentioned above to determine eligibility. The employer must have the ability to pay the employee.
Multinational Executives and Managers INA §203(b)(1)(C):
The immigrant must have been employed abroad for one year (in the last 3 years) by the firm or corporation or other legal entity or an affiliate or subsidiary. Affiliates include entities owned and controlled by the same group of individuals in approximately the same percentages. 8 CFR §204.5(j)(2). Subsidiaries can be joint ventures if they have equal control and veto power. The Petitioner must show the corporate relationship and that the company will continue to exist after the Beneficiary immigrates. The Beneficiary must com in to the United States to continue working for the same employer. The company must be doing business in the United States for one year.
Managerial and executive capacity is defined under INA §101(a)(4). Managerial capacity means that the employee personally:
- Manages the organization, department, subdivision, function, or components;
- Supervises and controls the work of other supervisory, professional or managerial staff;
- Has authority to hire and fire employees and other subordinates; and
- Exercises discretion over day-to-day operations of the activity or function.
Executive capacity is defined as an assignment in an organization in which the Beneficiary personally:
- Directs the management of the organization;
- Establishes goals and policies;
- Exercises wide latitude in discretionary decisions; and
- Receives only generalized supervision or direction from high-level executives, the board of directors, or stockholders.
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