EB-1 visa

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The EB-1 (or, colloquially, "Einstein") visa is a preference category for United States employment-based permanent residency. It is intended for "priority workers". Those are foreign nationals who either have "extraordinary abilities", or are "outstanding professors or researchers", and also includes "some executives and managers of foreign companies who are transferred to the US". [1] It allows them to remain permanently in the US.

Contents

Therefore, applicants who can demonstrate their extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim are not required to have a permanent offer of employment in the US and are eligible to self-petition, however, they must intend to work in the US in their field of expertise. [2]

Numbers granted

The chart below shows the numbers of EB-1, EB-2, and EB-3 visas issued at U.S. Foreign Service posts in fiscal years 2014 through 2018, according to the U.S. State Department: [3]

Type20142015201620172018
EB-1 visa: Priority worker, spouse and children1,6801,8912,3612,5293,854
EB-2 visa: Professional holding advanced degree or alien of exceptional ability, spouse and children1,8801,8562,1553,2233,119
EB-3 visa: Skilled worker or professional, spouse and children
Other worker, spouse and children		6,246
842		6,226
1,114		7,961
2,340		6,964
929		9,557
1,190

People who can apply

The visa is granted to three types of people: [1] [4]

Eligibility criteria

Extraordinary Ability category

EB1 Extraordinary Ability green card application is in the employment-based immigration visa first preference (EB1) category known as EB1A or EB1EA. Among all three categories under EB-1, only EB-1A allows self petition—meaning, an individual can petition an EB-1A case for himself/herself without any U.S. employer to act as the sponsor/petitioner. However, EB-1A also has a very high standard of law. It requires the petitioner to show that the individual has either won some major award (Nobel Prize, for example) or met at least three out of ten regulatory criteria and show that the individual has "risen to the very top of the endeavor with national or international acclaim." After the precedent case, Kazarian v. USCIS (Two-Part Analysis for EB1-A Petition), the adjudicating officers are applying a two-part adjudication approach—after determining whether the individual has met at least three regulatory criteria, the adjudicator must consider all of the submitted evidence in totality to make a determination as to whether the foreign national meets the requisite level of expertise for the category. EB1A green card application has clear advantages for scholars, researchers, post doctoral research fellows, Ph.D. students, and other advanced degree professionals.

An alien applicant must meet 3 out of the 10 listed criteria below to prove extraordinary ability in the field: [1]

The major advantages of applying for aliens of extraordinary ability include: no labor certification is required for this EB-1 category; no job offer or permanent job position is required for aliens of extraordinary ability; and much faster to obtain a Green Card than the EB-3 or EB-2 immigration categories.

Outstanding Professors and Researchers category

The EB1 Outstanding Researcher or Professor immigrant visa classification (EB1B, EB-1B, EB1-OR) is the employment-based first preference immigration. The EB-1B petition consists of Form I-140 and supporting documents to show that the alien beneficiary meets EB1 Outstanding Researcher or Professor criteria. The U.S. employer intending to employ a professor or researcher who is outstanding in an academic field may file a Form I-140 petition in such classification. Employer should file it for the alien employee.

For an EB1-OR petition, the petitioner should include documentation demonstrating the alien's outstanding ability, and should also include a permanent job offer letter, as well as evidence of three years teaching or research experience.

The petitioner must include documentation of at least two of the six criteria listed below, and an offer of employment from the U.S. employer: [1]

Multinational Manager or Executive category

When an employer wishes to transfer an alien employee working abroad to a U.S. company as an EB1 Multinational Executive or Manager immigrant, a qualifying relationship must exist between the foreign employer and the U.S. employer. A qualifying relationship exists when the U.S. employer is an affiliate, parent or a subsidiary of the foreign firm, corporation, or other legal entity. To establish a qualifying relationship under the regulations (visa EB1C), the petitioner must show that the foreign employer and the U.S. employer are the same employer, or related as a parent/subsidiary or as affiliates.

Managerial functions can also include management of an essential function of the organization, the beneficiary does not necessarily have a large number of direct reports.

A United States employer may file a petition on Form I-140 for classification of an alien as a multinational executive or manager. No Labor Certification is required for this classification. The prospective employer in the United States must furnish a job offer in the form of a statement that indicates that the alien is employed in the United States in a managerial or executive capacity. Such a statement must clearly describe the duties performed by the alien.

EB1 India I-140 Approvals from 2013 to 2023 (Q3) EB1 India I-140 Approvals from 2013 to 2023 (Q3).png
EB1 India I-140 Approvals from 2013 to 2023 (Q3)

In 2016 and 2017, heavy demand for EB1C-India green card has led to retrogression of EB1-India and EB1-China green cards [9] [10] which means that Indian and Chinese scientists have to wait for an additional time in order to receive a green card, no matter how qualified they are.

Application

EB-1 applicants, unlike most EB-2 and EB-3 applicants, don't have to go through the "labor certification" process. If they are in status in the US (for example, working on an O-1 visa) and are from a country for which EB-1 numbers are current, [11] EB-1 applicants may concurrently file the I-140 immigrant petition and the I-485 application for adjustment of status (plus I-131 and I-765). Approval of the I-131 and I-765 grants the applicant a temporary employment authorization document and advance parole travel permission for the period during which the petition and application are being adjudicated. [12]

Within this category, aliens with extraordinary ability (EB-1 section A) don't have to demonstrate that they have an employer in the US; they only have to demonstrate that they will keep working in the field in which they have the extraordinary abilities. Most of the other EB-1 applicants (for example, multinational executives or managers and outstanding professors or researchers) have to have an employer in the US to sponsor their applications. [13]

Obtaining lawful permanent residence as an alien of extraordinary ability is a difficult task. In 8 CFR § 204.5(h)(2), the definition of extraordinary ability is "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor". [14] The applicant must produce evidence which satisfies at least three of the 10 criteria listed in the regulation. [15] If the USCIS approves the I-140 petition the applicant will be granted adjustment of status, assuming no ineligibilities such as disqualifying criminal convictions.

See also

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<span class="mw-page-title-main">Green card</span> Lawful permanent residency in the United States

A green card, known officially as a permanent resident card, is an identity document which shows that a person has permanent residency in the United States. Green card holders are formally known as lawful permanent residents (LPRs). As of 2019, there are an estimated 13.9 million green card holders, of whom 9.1 million are eligible to become United States citizens. Approximately 18,700 of them serve in the U.S. Armed Forces.

The H-1B is a visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H), that allows U.S. employers to employ foreign workers in specialty occupations. A specialty occupation requires the application of specialized knowledge and a bachelor's degree or the equivalent of work experience. The duration of stay is three years, extendable to six years, after which the visa holder can reapply. Laws limit the number of H-1B visas that are issued each year. There exist congressionally mandated caps limiting the number of H-1B visas that can be issued each fiscal year, which is 65,000 visas, and an additional 20,000 set aside for those graduating with master’s degrees or higher from a U.S. college or university. An employer must sponsor individuals for the visa. USCIS estimates there are 583,420 foreign nationals on H-1B visas as of September 30, 2019. The number of issued H-1B visas have quadrupled since the first year these visas were issued in 1991. There were 206,002 initial and continuing H-1B visas issued in 2022.

An L-1 visa is a visa document used to enter the United States for the purpose of work in L-1 status. It is a non-immigrant visa, and is valid for a relatively short amount of time, from three months to five years, based on a reciprocity schedule. With extensions, the maximum stay is seven years.

An O visa is a classification of non-immigrant temporary worker visa granted by the United States to an alien "who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements", and to certain assistants and immediate family members of such aliens.

A K-1 visa is a visa issued to the fiancé or fiancée of a United States citizen to enter the United States. A K-1 visa requires a foreigner to marry his or her U.S. citizen petitioner within 90 days of entry, or depart the United States. Once the couple marries, the foreign citizen can adjust status to become a lawful permanent resident of the United States. Although a K-1 visa is legally classified as a non-immigrant visa, it usually leads to important immigration benefits and is therefore often processed by the Immigrant Visa section of United States embassies and consulates worldwide.

TN status is a special non-immigrant classification of foreign nationals in the United States, which offers expedited work authorization to a citizen of Canada or a national of Mexico. It was created as a result of provisions of the North American Free Trade Agreement that mandated simplified entry and employment permission for certain professionals from each of the three NAFTA member states in the other member states. The provisions of NAFTA relevant to TN status were then carried over almost verbatim to the United States–Mexico–Canada Agreement that replaced NAFTA in 2020.

Priority date is a United States immigration concept – it is the date when a principal applicant first reveals his or her intent of immigration to the US government. For family-sponsored applicants, the priority date is the date an immigration petition, filed on behalf of him or her, is received by the United States Citizenship and Immigration Services (USCIS). For employment-based immigration beneficiaries, the priority date is the date an immigration petition is filed at USCIS, under categories where a labor certification is not required, or when the United States Department of Labor receives a labor certification application, under categories where a labor certification is required. In all cases, the priority dates are not established until USCIS approves the immigration petition. The date establishes one's place in the queue for a family-sponsored or employment-based or permanent residency permit application.

Labor certification is an immigration process step in the United States of America. Its stated goal is to "protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers".

<span class="mw-page-title-main">Visa policy of the United States</span> Policy on permits required to enter the United States and its unincorporated territories

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<span class="mw-page-title-main">Employment authorization document</span> Document issued by the United States Citizenship and Immigration Services

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EB-2 is an immigrant visa preference category for United States employment-based permanent residency, created by the Immigration Act of 1990. The category includes "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States". Applicants must generally have an approved labor certification, a job offer, and their employer must have filed an Immigrant Petition for Alien Worker with the USCIS.

Alien of extraordinary ability is an alien classification by United States Citizenship and Immigration Services. The United States may grant a priority visa to an alien who is able to demonstrate "extraordinary ability in the sciences, arts, education, business, or athletics" or through some other extraordinary career achievements.

EB-3 is a visa preference category for United States employment-based permanent residency. It is intended for "skilled workers", "professionals", and "other workers". Those are prospective immigrants who don't qualify for the EB-1 or EB-2 preferences. The EB-3 requirements are less stringent, but the backlog may be longer. Unlike persons with extraordinary abilities in the EB-1 category, EB-3 applicants require a sponsoring employer. There is no "self-petition" category.

Form I-129, Petition for a Nonimmigrant Worker is a form submitted to the United States Citizenship and Immigration Services used by employers or prospective employers to obtain a worker on a nonimmigrant visa status. Form I-129 is used to either file for a new status or a change of status, such as new, continuing or changed employer or title; or an amendment to the original application. Approval of the form makes the worker eligible to start or continue working at the job if already in the United States. If the worker is not already in the United States, an approved Form I-129 may be used to submit a visa application associated with that status. The form is 36 pages long and the instructions for the form are 29 pages long. It is one of the many USCIS immigration forms.

<span class="mw-page-title-main">Form I-130</span>

Form I-130, Petition for Alien Relative is a form submitted to the United States Citizenship and Immigration Services by a United States citizen or Lawful Permanent Resident petitioning for an immediate or close relative intending to immigrate to the United States. It is one of numerous USCIS immigration forms. As with all USCIS petitions, the person who submits the petition is called the petitioner and the relative on whose behalf the petition is made is called the beneficiary. The USCIS officer who evaluates the petition is called the adjudicator.

The National Visa Center (NVC) is a center that is part of the U.S. Department of State that plays the role of holding United States immigrant visa petitions approved by the United States Citizenship and Immigration Services until an immigrant visa number becomes available for the petition, at which point it arranges for the visa applicant(s) to take the visa interview at a consulate abroad. It is located in Portsmouth, New Hampshire. It was established on July 26, 1994, on the site of an Air Force base that was closed down by The Pentagon.

<span class="mw-page-title-main">Form I-140</span> I-140, Immigrant Petition for Alien Worker

Form I-140, Immigrant Petition for Alien Worker is a form submitted to the United States Citizenship and Immigration Service (USCIS) by a prospective employer to petition an alien to work in the US on a permanent basis. This is done in the case when the worker is deemed extraordinary in some sense or when qualified workers do not exist in the US. The employer who files is called the petitioner, and the alien employee is called the beneficiary; these two can coincide in the case of a self-petitioner. The form is 6 pages long with a separate 10-page instructions document as of 2016. It is one of the USCIS immigration forms.

A National Interest Waiver is an exemption from the labor certification process and job offer requirement for advanced degree/exceptional ability workers applying for an EB-2 Visa for Immigration into the United States.

Kazarian v. USCIS refers to a case decided by the United States Court of Appeals for the Ninth Circuit on March 4, 2010, pertaining to a decision by United States Citizenship and Immigration Services (USCIS) on a Form I-140 EB-1 application. The decision led the USCIS to issue a policy memo to change its adjudication process for EB-1 and EB-2 petitions to a "two-step review" where the first step would focus on counting pieces of evidence and the second step would be a final merits determination. The case has been cited by USCIS as well as by petitioners in hundreds of Form I-140 petitions and appeals since 2010.

References

  1. 1 2 3 4 5 6 7 "Employment-Based Immigration: First Preference EB-1". USCIS. Archived from the original on 2012-08-29. Retrieved 2012-08-27.
  2. ↑ "United States Visa: EB1 Green Card Priority Workers". www.migrationexpert.com. Archived from the original on 2017-01-29. Retrieved 2017-01-26.
  3. ↑ Table II: Classes of Immigrants Issued Visas at Foreign Service Posts: Fiscal Years 2014 - 2018, Report of the Visa Office 2018, U.S. Department of State (2018).
  4. ↑ Jaensch Immigration law firm. "EB-1 Green Card for Aliens with Extraordinary Ability" (PDF). Archived from the original (PDF) on 2012-06-17.
  5. ↑ "For One Refugee, Sculpture Paves the Way to Freedom". Christian Science Monitor. 1996-10-21. Archived from the original on 2011-07-17. Retrieved 2010-05-31.
  6. ↑ "Extraordinary Ability in Business". 2012-08-21. Archived from the original on 2012-02-04. Retrieved 2012-02-01.
  7. ↑ "Multinational Executives and Managers – EB-1-3". 2012-08-21. Archived from the original on 2012-02-04. Retrieved 2012-02-01.
  8. ↑ "Modern day slavery in America — the H1B visa". 10 November 2017.
  9. ↑ Yanofsky, David. "The US has cut off the path to citizenship for India and China's most exceptionally talented people". Quartz. Archived from the original on 2017-10-06. Retrieved 2017-10-05.
  10. ↑ O'Brien, Sara Ashley. "Go-to visa for Indian and Chinese temporarily frozen". CNNMoney. Archived from the original on 2017-10-06. Retrieved 2017-10-05.
  11. ↑ "Visa Bulletin". Archived from the original on 2014-01-01. Retrieved 2018-08-18.
  12. ↑ "Adjustment of status". USCIS. Archived from the original on 2012-01-23. Retrieved 2012-02-01.
  13. ↑ "Green Card through self-petition". Archived from the original on 2012-02-14. Retrieved 2012-02-01.
  14. ↑ 8 CFR Ch. I (1–1–11 Edition) gpo.gov
  15. ↑ "EVIDENTIARY CRITERIA FOR EB-1-1 IMMIGRANT VISA AS AN 'ALIEN OF EXTRAORDINARY ABILITY'". Aliens of Extraordinary Ability and Problems of Proof. GUDEON & McFADDEN. 21 August 2012. Archived from the original on 26 October 2012. Retrieved 27 August 2012.
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