Understanding the EB1 Categories

 

 

Understanding the options.

 

For professionals who are leaders in the fields of business, arts, sciences, technology, education or sports apply for permanent residence status in the U.S under the First Preference Immigration (EB-1) which is an employment-based petition. The following are the different types of EB-1 petitions prevalent:

 

1) EB-1A - Alien of Extraordinary Ability:

 

It is often acknowledged that the U.S. encourages people with Extraordinary Ability in the field of sport, arts, sciences, education or business who have received national or international acclaim. This acclaim can be evidenced through documents like receipt of awards and other recognitions, and these people are expected to continue in their field of expertise after permanent resident ship and contribute beneficially to the country.

 

2) EB-1B - Outstanding Researcher/Outstanding Professor:

 

Academicians who have a minimum of 3 years of academic research or teaching experience and are internationally recognized in their academic endeavors can apply for EB-1B as Outstanding Researchers or Outstanding Professors. It is important that they have at least three years of research experience to their credit and have documented evidence of their extraordinary contributions in the institutions or companies they have worked with. Moreover, it is mandatory for them to have tenured or tenure-track positions at universities or institutes of higher education. As an alternate, they must have comparable research positions in private companies that employ at least three full-time researchers at any given time.

 

3) EB-1C - Multinational Managers and Executive Transferees:

 

Individuals who have been employed abroad as Multinational Executives or Managers for a minimum of 12 months of the three years before applying for admittance to U.S. as priority workers are eligible to apply under this category. It is also imperative that these individuals should enter the U.S. continuing to be employed as executives or managers for the establishment that employed them abroad.
 

It is important to note that people who qualify for an EB-1 petition are at an advantage because they do not require a Labor Certification which is difficult and expensive to obtain. Even after which the applicant could be denied entry because a U.S. worker with technical qualifications for the employment is found, even if he is professionally unfit for the position under consideration.

 

Also, for an EB-1A petition, a permanent job offer is not mandatory and an individual could petition immigration all by himself without sponsorship from a U.S. employer's. In the case of EB-1B and EB-1C petitions, a permanent job offer from a U.S. employer who is the petitioner, is essential.

 

 EB-1 Application for Alien with Extraordinary Ability - Form I-140

 

Applicant must be nationally and internationally acclaimed and recognized professional in his field to file for a Form I-140 application for an alien with extraordinary ability. Documentary evidence must be enclosed with the Form I-140 application for an alien of extraordinary ability to support his claims.

It is commonly assumed that an EB-1A immigration visa has stringent qualification standards and is usually difficult to get an approval for the same. Hence most immigrants avoid applying for PR status in this category.

PR applications in EB-2 and EB-3 categories for certain countries take years to get approved even for individuals with Extraordinary Ability. Therefore, they are increasingly opting for the EB1 Extraordinary Ability (EB-1A, or EB1-EA) category which is immediately available through the first preference channel.

The Form I-140 petition for Aliens with Extraordinary Ability must be supported with documentary evidence to prove his recognition and as per the regulations should have "sustained national or international acclaim in the field of endeavor".

USCIS regulations do not necessary mandate the need to have a doctorate degree for the EB-1A applicant which is normally a set expectation for establishing credentials of having extraordinary ability.

 

Criteria to Qualify for an EB-1 Extraordinary Ability Immigrant Visa?

 

An applicant could qualify for an EB-1 Extraordinary Ability immigrant visa if he has:

1) An extraordinary ability in business, science, arts, education or athletics.

2) Achieved national or international acclaim in his field.

3) Will work in the United States in his area of extraordinary ability.

If an applicant has fulfilled all the above mentioned requirements, he does not need to have a job offer as long as he will continue working in his field of expertise after coming into the United States. Alternatively, if he has a job offer, then the U.S. employer can file the initial EB-1 application through the Form I-140 for him, with the U.S. Citizenship and Immigration Services (USCIS).

 

"EB1 Alien of Extraordinary Ability" and "EB1 Outstanding Researcher or Professor" – Principal Differences.

 

1.            The applicant filing for the EB1 Extraordinary Ability petition does not need to have a job offer in hand, but the applicant filing for the EB1 Outstanding Professors and Researchers Petition mandatorily needs to have a job offer from a U.S employer because he cannot self-file for the EB1 Outstanding Professors and Researchers petition without such a sponsorship.

2.            The EB-1A petitioner for alien with extraordinary ability must have enough evidence to prove that he really has “extraordinary ability” in his field, an expectation which is usually a lot higher than the "outstanding ability" required for an EB-1B petition.

3.            The EB-1A Extraordinary Ability applicant needs to establish the receipt of an internationally acknowledged award, or fulfill at least three of ten criteria and substantiate it with relevant documentation. The EB-1B Outstanding Professors and Researchers, applicants however need to only demonstrate that they have achieved international recognition as outstanding individuals in academics, or by meeting at least two of the six criteria laid down by the USCIS.

The USCIS has laid down its requirements for EB1 Extraordinary Ability application which is as mentioned below:

"The EB1 Extraordinary Ability classification applies to individuals with extraordinary ability in the sciences, arts, education, business, or athletics. The individual must demonstrate that they have sustained national or international acclaim, and that their achievements have been recognized in the field of expertise, indicating that they are one of that small percent who has risen to the top of their field of endeavor. The individual must plan to continue to work in their area of extraordinary ability and must substantially benefit the United States."

 

The similarities and differences between the EB-1A and EB-1B categories are as follows.

 

The similarities:

•             Both the categories do not require a Labor Certification;

•             Both categories have to establish evidence of achievement and of extraordinary or outstanding ability;

•             Documentation supporting either of the petitions is similar.

 

The differences:

•             The "Extraordinary Ability" category generally needs to establish higher accomplishment and skills;

•             The "Extraordinary Ability'' category can apply to diverse fields like the sciences, arts, education, business, or sports, while the "Outstanding Researcher or Professor" category is restricted to scientific or academic fields;

•             The "Extraordinary Ability" category does not need a job offer, while the "Outstanding Researcher or Professor" category must have a job offer from a US employer;

•             The EB-1A applicant can self-petition in the "Extraordinary Ability" category without a U.S. employer's sponsorship, while the EB-1B applicant petitioning as an "Outstanding Researcher or Professor" needs a sponsorship from a US employer;

•             The "Outstanding Researcher or Professor" category needs a minimum of three years experience in his field, while the "Extraordinary Ability" category needs no minimum experience in any particular field.

 

 

O-1 Visa Holders and their EB1 Extraordinary Ability Application

 

An O-1 visa approval does not automatically qualify for the approval of EB-1A classification for extraordinary ability. USCIS does not consider the fact that it had earlier issued the O-1 visa to the applicant, if the particulars submitted do not support approval of the EB1 petition.

 

USCIS treats every petition as separate and independent, adjudicates each on its own merits as per the prevalent statutory and regulatory requirements. Different standards and criteria have been established for O-1 nonimmigrant visa applicants in the arts, athletics, and the entertainment industry. So, an individual may have the necessary “distinction” to qualify for the O-1 nonimmigrant visa but still has to have “national or international acclaim” to fulfill the EB-1A immigrant criteria.

 

Therefore, the EB1 applicant still has to address and fulfill all the requirements laid down by the USCIS for getting an approval.

 

 

The EB-1A Petition for J-1 Visa Holder

 

A J-1 visa holder is not required to have a J-1 waiver (two-year home country residency requirement) to file a Form I-140 petition under the EB1 Extraordinary Ability category. He can file the EB-1A petition and get the J-1 waiver later, but he is still subject to the two-year home country residency requirement even after the EB1 approval till he gets the J-1 waiver and only then can he move his status from J-1 to U.S. permanent residency.

Learn more about the EB1-A Category hereEB1A

 

 

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