Over the last few weeks, we’ve discussed two subcategories of the EB-1 employment green card category.  The last group within the first employment-based immigration preference is reserved for multinational executives and managers.  Because there is seldom a waiting period for the priority date to become current, this allows for the easy transfer of executives, and has been of tremendous assistance for international business.  While the petition must be filed by an employer, no labor certification is required.

To qualify for immigration as an executive or manager, the alien must have worked for the petitioner for at least one year of the previous three.  This does not need to have been completed in one stretch, but can be aggregated.  This work must be in an executive or managerial capacity.  Also, the alien must be coming to the US to work in an executive or managerial capacity.  If the alien is already in the US, the required one year of employment in the past three will be determined by looking at the three years prior to the alien’s transfer to the US.  The US business must have been established for at least one year before filing the petition. 

Executive Capacity

For a person to be considered an executive, the job must meet the following requirements:

·        Manage an organization or major component

·        Have authority to make police and establish goals

·        Have discretionary decision-making authority

·        Be subject to only general supervision from higher executive, the board of directors, or stockholders.

The overall size of the organization is a factor in determining executive capacity.  The larger the organization, the more reasonable it will be seen to require the international transfer.

Managerial Capacity

For a person to be considered a manager, the job must meet the following requirements:

·        Manage an organization or department

·        Supervise and control other managers or professional level personnel

·        Authority to make personnel decisions

·        Have discretion to make decisions about operations

As with executives, the size of the business is an important factor.

If this category sounds familiar, it is because it is very similar to the L-1 nonimmigrant category.  There are a few differences.  EB-1s are only available to managers and executives, and not workers with specialized knowledge.  Also, unlike L-1’s, the US branch of the business must have been in operation for one year before petitioning for an immigrant worker.

Last week we discussed the first subcategory within the first preference employment-based immigration category, aliens of extraordinary ability.  This week we discuss the second subcategory, outstanding professors and researchers.  The evidentiary requirements for this category are as follows:

·        International recognition as outstanding in a specific academic field

·        At least three years teaching or research in the field.  The teaching or research experience can be gained while in pursuit of an advanced degree, but only if the alien had full responsibility for the courses taught, or the research is recognized as outstanding.

·        An offer of employment.  There are three forms this offer can take:

·        A tenure or tenure-track teaching position or a comparable research position, or

·        A research position with no fixed term in a position where the employee would generally have the expectation of permanent employment, or

·        A research position with a private company if the employer has at least three full time researchers and has documented research accomplishments in the field.

Unlike aliens in the extraordinary ability subcategory, aliens in the outstanding professor or researcher subcategory must have a job offer.  However, as with all first preference employment petitions, no labor certification is required. 

International Recognition as Outstanding

An alien demonstrates that their work has been recognized as outstanding in the international arena by presenting evidence similar to that required to show extraordinary ability.  Two of the following types of evidence are required:

·        Receipt of a major international prize or award for outstanding achievement in the academic field,

·        Membership in associations that require outstanding achievements of their members,

·        Material in professional publications written by others about the alien’s work,

·        Participation as a judge of the work of others in the field,

·        Original contributions in the field, or

·        Authorship of scholarly books or articles in journals with international circulation.

There, of course, are types of evidence that are more useful than others.  A book published by a vanity press will not be given much weight, nor will mentions of the alien’s work without evaluation.  Strong evidence includes peer-reviewed publications and participation as a peer-reviewer.  As always, one of the strongest types of evidence is the submission of letters from academic peers. 

Also, the alien must submit letters from past employers documenting at least three years of teaching or research experience.

Qualifying Employment Offer

Along with the petition, the potential employer must submit a letter outlining the employment offer.  The letter must include the basic terms of employment, including the salary offered.  More difficult is describing the position.  If the position offered is a tenured position, or a tenure-track position, then it is simple.  However, few research positions are tenured.  Qualifying research positions, therefore, can include positions that do not have a fixed duration but are the sort of position in which the alien can expect permanent employment.

Private employers face additional requirements.  The employer must show that they employ three full-time researchers and that research conducted by the employer has resulted in documented accomplishments.  INS rules provide no information on how a private employer can document research accomplishments.  The best evidence possible should be submitted, which would include any patents issued to researchers at the institution, and articles published by employees.

The first employment based immigration preference category covers “priority workers.”  These are workers whose skills and talents are important to the US – the “best and brightest.”  The annual cap on EB-1 visas is 40,000, plus any visas left over from the fourth and fifth employment based preference categories (special immigrants and immigrant investors).  This is more visas than are ordinarily used in the category, so there are no backlogs in visa issuance in this category. 

The EB-1 category covers three groups:

·        Aliens of extraordinary ability

·        Outstanding professors and researchers

·        International managers and executives

 One of the most attractive aspects of the EB-1 category is that the labor certification requirement does not apply.  This makes the time spent processing an EB-1 application much shorter than for categories that do require a labor certification. 

Aliens of Extraordinary Ability

This subcategory covers aliens possessing extraordinary ability in the sciences, arts, education, business or athletics.  The extraordinary ability subcategory does not require a specific job offer, so long as the alien states that they will continue to work in the field of their extraordinary ability in the US.  This means that the alien may file a petition on their own behalf, rather than having an employer file for them. 

Extraordinary ability is a relatively new concept in immigration law, being introduced only in 1990.  INS regulations define extraordinary ability as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.”  There are two ways to demonstrate extraordinary ability.  First, the alien can show that they have received a major, internationally recognized award such as a Nobel Prize or an Academy Award.  The second, and more common method is for the alien to show three of the following ten types of evidence:

·     Receipt of lesser national or international prizes or awards for excellence in their field of endeavor

·     Membership in associations in the field of endeavor that require outstanding achievements of their members

·     Published material about the alien and his work in professional journals, trade publications, or the major media

·     Participation, either in a group or alone, as a judge of others in the same or a similar field

·     Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor

·     Authorship of scholarly articles in the field, published in professional journals or the major media

·     Display of the alien’s work at artistic exhibitions or showcases in more than one country

·     Performance in a lead, starring, or critical role for organizations with a distinguished reputation

·     Commanding a high salary compared to others in the field

·     Commercial success in the performing arts, as shown by box office receipts and sales

·        Receipt of lesser national or international prizes or awards for excellence in their field of endeavor

·        Membership in associations in the field of endeavor that require outstanding achievements of their members

·        Published material about the alien and his work in professional journals, trade publications, or the major media

·        Participation, either in a group or alone, as a judge of others in the same or a similar field

·        Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor

·        Authorship of scholarly articles in the field, published in professional journals or the major media

·        Display of the alien’s work at artistic exhibitions or showcases in more than one country

·        Performance in a lead, starring, or critical role for organizations with a distinguished reputation

·        Commanding a high salary compared to others in the field

·        Commercial success in the performing arts, as shown by box office receipts and sales

 Realizing that these ten categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, the INS has also included a catch-all category allowing submission of other comparable evidence.

While INS rules set up a three out of ten requirement with regard to the above categories of evidence, subsequent policy statements have made the rule less clear.  For example, when publication of scholarly articles is standard in the field of endeavor, the INS often will not accept it as one of the three types of evidence and will demand additional evidence.  However, in this case, instead of presenting additional evidence the alien can counter by showing that the publications were in the most prestigious journals in the field, have been peer reviewed in other publications, or have been cited extensively by others in the field.

While not an official category of evidence, another way to demonstrate extraordinary ability is through comparison with an alien already granted that status.  This is possible because INS regulations make comparison with others in the field one of the standards for judging extraordinary ability.  Therefore, while it may be difficult to find out how the INS has treated someone with similar credentials, it is highly relevant evidence.

One final word of caution should be made of the type of evidence submitted to the INS.  Many types of evidence, while it may technically fit within INS regulations, are not accorded much weight by the agency.  For example, publication by a vanity press, a simple citation to the alien’s work without evaluation, or a single listing in an index are not accorded much weight.  Other types of evidence are considered highly persuasive, such as publication in peer-reviewed journals.  Finally, some of the most persuasive types of evidence are letters from peers in the alien’s field attesting to the alien’s important contributions and ability. 

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