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Elements of the EB-1 Visa Category

 
Workers of Extraordinary Ability: Those workers who can show that they possess extraordinary ability in the sciences, arts, educations, 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. 

Receipt of a major, internationally known recognized award (e.g., the Nobel Prize), on its own, can qualify an individual for EB-1 classification. If the applicant is not the recipient of such an award, then documentation of at least three of the following is required.

Outstanding Professors and Researchers: The alien must be internationally recognized as outstanding in a specific academic field, have a minimum of three years of experience in teaching and/or research in that field, and must enter the U.S. in a tenure or tenure-track teaching or comparable research position at a university of other institution of higher education, or in a comparable research position with a private employer under certain circumstances.

The outstanding professor or researcher must satisfy at least TWO of the following criteria.

Research positions must be permanent: a tenured, tenure-track, or for a term of indefinite or unlimited duration with the expectation of continued employment, unless there is a good cause for termination.  Further, the employer need not be a university or educational institution.  Outstanding researchers and professors are not required to possess a doctorate.

Certain Multinational Executives and Managers: The definition of EB-1 Multinational Executives and Managers requirements closely track those of L-1A Intra-company Transferees. A manager is defined as an employee who holds an assignment with the organization in which he/she personally:

  1. Manages the organization, department, subdivision, function or component;
  2. Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
  3. Has authority to hire and fire or recommend personnel actions (if another person directly supervises employees), or if does not directly supervise employees, functions at a senior level; AND
  4. Exercises discretion over day-to day operations of the activity or function within the company.

An executive is defined as an employee who holds an assignment with the organization in which he/she primarily directs the management of the organization or a major component or function of the organization; establishes organizational goals and policies; exercises a wide latitude in discretionary decision-making; and receives only general supervision or direction from higher-level executives, board of directors or stockholders.

A multinational manager or executive is eligible for priority worker status if he/she has been employed outside the U.S. in a managerial or executive capacity:

  1. For at least one (1) of the three years immediately preceding the filing of the petition, OR,
  2. In the case of a foreign worker presently in the U.S., one of the three years preceding the entry to the U.S. as a nonimmigrant.

The foreign worker must be coming to the U.S. in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive. Unlike the L-1 applicant, the EB-1 manager or executive cannot have been merely a skilled worker abroad. 

The petitioner must be a U.S. employer that is an affiliate, a subsidiary, or the same employer as the firm, corporation, or other legal entity that employed the alien abroad.  The definitions of "affiliate" and "subsidiary" are comparable to the definitions found in the L-1 Intra-company Transferee category. A qualifying affiliation/subsidiary relationship is thus defined as follows:

  1. The U.S. firm and the foreign firm can have common majority ownership;
  2. Less than majority ownership, but control by can be sufficient- e.g., a joint venture where the U.S. company owns 50% but has control over management and policy;
  3. Less than majority ownership, but ownership by a common group or the same individuals is sufficient- e.g., a U.S. affiliate owned 1/3 by a family corporation, 1/3 by a person who owns a foreign corporation, and 1/3 by family of said person. In order to establish an affiliate, each individual in the group must own approximately the same share or proportion of each entity.

Factors that may be considered include: (a) common name; (b) regular sharing and exchange of personnel; (c) cross directorship; (d) sharing of technical, financial and research skills; (d) size and general recognition of the organization.

Recent Trends in INS Adjudications:  Because an alien can now concurrently file Form I-140 and the Adjustment of Status application, these cases are taking less time to complete. However, due to concerns for potential fraud, the USCIS is scrutinizing these cases more highly carefully before issuing benefits such as issuance of Employment Authorization.

 

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