December 28

Mastering the EB-1 Visa Application Process

A Guide to the EB-1 Visa Process

The EB-1 visa category is a set of highly sought-after permanent residency green cards within the employment-based or “EB” visa category. The number “1” denotes preference and is desirable because the priority dates are current (meaning no enforced wait time). Applicants also do not have to go through the PERM labor certification process to show no U.S. workers are available to fill the position.

The Five Types of Employment-Based Visas (EB Visas)

The EB-1 visa category has three distinct subsets available to foreign nationals that can prove one of the following:

  1. Demonstrate extraordinary ability in their field
  2. Have been recognized as an outstanding professor or researcher
  3. Is an executive or manager of a multinational corporations

USCIS reserves EB-1 visas for the most distinguished people who have risen to the top of their profession for a sustained amount of time. Applicants have to establish a strong case that goes above and beyond meeting the EB-1 requirements to get approved.

Let’s talk case strategy for each EB-1 visa type.

When applying for an EB-1a or EB-1b, there are three types of evidence to include: primary, secondary, and tertiary.

  • Primary evidence establishes the facts and excludes opinion. Think of the primary evidence as the bricks to building a solid case.
  • Secondary evidence demonstrates the person’s impressive contributions to the industry. Evidence can include expert opinions in the form of well-written letters about how the individual’s achievements meet the criteria. The secondary evidence serves as mortar for the bricks
  • Tertiary evidence contextualizes the facts (like a national award) by explaining why the award is significant. It may also present the expert’s credentials and why their opinion matters. Tertiary evidence acts as a seal for the mortar and bricks to solidify a case.

EB-1a Visa: Extraordinary Ability

To be considered by USCIS as possessing extraordinary ability, the EB-1a green card applicant must meet at least three of the ten criteria and strategically present the evidence as previously explained.

  • The applicant could have won a national or international award of excellence. 
  • They may have also played a critical role in a company that received an award or coached someone who won a prize.
  • The applicant may be a member of an association that qualifies as an outstanding achievement as judged by members. The applicant should be at the leadership core or part of the organization’s elite group of decision-makers. 

When considering the membership of an outstanding organization, USCIS looks at the criteria for obtaining membership, such as being part of a national team as an athlete.

  • Publications made by the individual in notable scientific or teaching journals or published material referencing the person or their work in an influential trade magazine or significant media. The New York Times can qualify as major media, but the local newspaper does not.
  • Significant contributions within the industry supported by established experts such as inventions, patents, or created methodologies that are significant to someone else can qualify to meet EB-1a. 
  • Earning a high salary within the industry or establishing a company may also meet the criteria.

EB-1b Visa: Outstanding Professor or Researcher

When applying for EB-1b, the individual must have at least three years of experience and be seeking a tenure-track teaching or research position in the same academic area at a university or comparable institution.

For USCIS to deem the professor or researcher as outstanding, there must be evidence of international recognition within the applicant’s particular field to demonstrate sustained achievement

Meeting two out of six of the necessary criteria for an EB-1b is primarily based upon published technical or scholarly articles, patents, and other achievements that denote exemplary accomplishment.

Strategically speaking, it takes about ten experts to analyze the publications, show the number of citations of the beneficiary’s work or prove the significance of the professor’s or researcher’s work.

EB-1c Visa: Multinational Executive or Manager 

Lastly, the EB-1c visa is for multinational executives or managers in the U.S. or who want to transfer to continue working in the same capacity for the organization or business. 

The applicant must have worked in a managerial or executive position for the petitioning U.S. employer for at least one continuous 12-month period in the previous 36 months.

The employer has to submit the petition and meet the definition of a multinational corporation. There are several ways to establish the nexus or relationship between companies. 

First, one of the companies is a subsidiary of either the U.S. branch or the foreign one owns the other. 

Second, it is an affiliate company in which the same people or entities own the same percentage or close to the same portion of both entities.

A common issue with the Eb-1c is when the executive owns 100 percent of the company. An effective strategy to resolve this matter is establishing a board of directors and creating employment agreements to indicate that the applicant is a fireable employee. 

USCIS often questions whether the position is managerial or executive. There are two types of managerial positions:

  1. An administrative manager who oversees a substantial number of manager-level people;
  2. A functional manager with autonomous control over their function or area;

A functional manager could be a person in research and development, developing technology for the company alone but is working alongside other departments.

Getting an EB-type green card is much faster than other visa categories because the applicant can immediately file for adjustment of status, which moves a person from temporary non-immigrant status into a permanent resident in around a year, sometimes quicker.

EB-1 Visas: An Overview

 


About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas

Jon is an Amazon number one best-selling author of H-1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon was also pivotal in the Cherokee Freedmen Supreme Court case.


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