Employment-Based Immigration: First Preference (EB-1)

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There are five total preference categories for employment-based permanent residence, ranked based on the foreign national’s qualifications. First Preference (EB-1) is generally processed the fastest of the five categories. However, there may be delays due to country of origin, and US government backlogs.

First Preference (EB-1) has an annual cap of 40,000, or 28.6% of the total immigrant visa quota of 140,000. EB-1 filers are eligible to petition for their spouse and children.

Foreign nationals with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers are eligible to file their EB-1 immigrant visa petitions with U.S. Citizenship and Immigration Services (USCIS).

The first preference, along with EB-2 and EB-3, are each allotted about 40,000 visas per year. Any unused visa numbers in the fourth and fifth EB preferences can also be used for EB-1.

EB-1 immigrant visas do not require a PERM Labor Certification application with the U.S. Department of Labor, which saves a significant amount of processing time. An EB-1 applicant can directly file a Form I-140 immigrant visa petition with USCIS. Once Form I-140 is approved, the EB-1 applicant can file for adjustment of status using Form I-485. As of October 2017, an in-person Adjustment of Status (AOS) interview is required for EB-1 applicants and their dependents.

Eligibility Categories for EB-1

Individuals with Extraordinary Ability

Qualifying foreign nationals with extraordinary ability do not need to have a US job offer. They must meet all three of the following criteria for extraordinary ability:

  • They possess extraordinary ability in the sciences, arts, education, business, or athletics. Extraordinary ability means that the foreign national’s:
    • Ability has been demonstrated by sustained national or international acclaim
    • Achievements have been recognized in the field through extensive documentation
  • They seek to enter the United States to continue work in the area of extraordinary ability; and
  • Their entry into the US will substantially benefit the country

Outstanding Professors and Researchers

A foreign national can file under EB-1 as an outstanding professor or researcher if they are internationally recognized as outstanding in a specific academic area. Additionally, the foreign national must have a minimum of 3 years teaching or research experience in that specific academic area. 

Finally, filers in this EB-1 category must have a research or teaching-oriented job offer in the United States. Acceptable positions include:

  • A tenured or tenure-track position at a university or institution of higher education to teach in the academic area;
  • A comparable position with a university or institution of higher education to conduct research in the area; or
  • A comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in the academic field in question

Multinational Executives and Managers

An immigrant EB-1 visa petition can be filed for a foreign national who has been employed continuously for at least one year with a qualifying corporate entity abroad in the three preceding years at the time of filing.

Additionally, the foreign national must be applying to continue to render services to the same employer or to a subsidiary or an affiliate of the entity abroad in a capacity that is managerial or executive.

What defines a Multinational Manager?

Most multinational executives and managers enter U.S. under E or L-1A visa classifications. Due to the ambiguity around the definition and scope of “manager,” USCIS defines them as:

  1. Those who typically manage employees within the organization. The USCIS may examine the factors including, but not limited to:
    • Applicant’s role in hierarchy within the organization
    • Number of professional employees he/she manages
    • Number of such employees who directly report to him/her
    • Applicant’s decision-making powers
  2. Those who manage an essential function within the organization. Also known as a “functional manager,” the USCIS looks for applicants who:
    • Manage an essential function within the organization to which he/she has access to day-to-day activities
    • Have control over that function
    • Are at a senior level in the organization’s hierarchy
    • Other factors may also be considered

For more information, please contact us at info@chugh.com