How to Master the EB1 Visa Green Card Application Process

How to Master the EB1 Visa Process

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jon-velie-roundAn EB1 visa category is a group of highly sought-after permanent residency green cards within the employment-based or “EB” visa category.  The number “1” denotes preference and is seen as particularly desirable as the priority dates are current, which means there is no enforced wait time, also applicants do not have to go through the PERM labor certification process to show that there are no any U.S. workers available to fill the position.

The EB1 visa category has three distinct subsets available to foreign nationals, who:

  1. Demonstrate extraordinary ability in their field
  2. Have been recognized as outstanding professors or researchers
  3. Are executives or managers of multinational corporations

These types of visas are highly discretionary and are reserved for the cream of the crop, people who have risen to the top of their profession for a sustained amount of time. USCIS does not just give them away. Simply submitting the documents required for an EB1 green card is not enough, applicants must establish a strong case that goes above and beyond meeting the EB1 requirements.

So let’s talk case strategy for each EB1 visa type.

When applying for an  EB1a (EB1-1) or EB1b (EB1-2), three types of evidence should be presented: primary, secondary and tertiary.

Most important is the primary evidence that establishes the facts and is not based on opinion. These are the bricks.

Experts and expert opinions are often used as the secondary evidence to demonstrate how the person has done something impressive for the industry. A well-written letter speaking to how the individual’s achievements meet the criteria can serve as mortar for the bricks. However, a poorly written letter about the petitioner will not accomplish anything.

Tertiary evidence contextualizes the facts (like a national award) by explaining what the award is or who the expert is and why their opinion matters, acting as a seal for the mortar and bricks.

To be considered by USCIS as possessing an extraordinary ability for an EB1a green card applicant must meet at least three of the ten criteria while also using the strategy for presenting evidence as previously explained.

The individual may have won a national or international award of excellence. To fulfill USCIS criteria, the applicant could also have been a critical part of a company that received an award or has coached someone who won an award.

Claiming membership of an association as an outstanding achievement as judged by members is not merely being a member of any standard industry organization. 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 can be used as evidence, the pivotal word here is notable. Another qualifier could be the published material referencing the person or their work in an influential trade magazine or major media. Sources such as the New York Times can qualify as major media, but the local newspaper does not.

Lastly, any significant contributions within the industry that are supported by established experts such as inventions, patents or created methodologies and are significant to someone else can be used to meet EB1a requirements. Earning a high salary within the industry or establishing a company may also meet the criteria.

When applying for EB1b or EB1-2 permanent residency, 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.

In order for USCIS to deem the professor or researcher as outstanding, evidence of international recognition within their particular field must be presented to demonstrate sustained achievement. Meeting two out of six of the necessary criteria for an EB1b is mainly based around published technical or scholarly articles, patents and other achievements that denote exemplary accomplishment.

Strategically speaking, it takes about 10 experts to analyze the publications and to demonstrate the number of times their work has been cited or followed in order to prove the significance of the professor’s or researcher’s work.

The last employment-based visa in the first preference category is the EB1c or EB1-3 for multinational executives or managers who have entered or want to transfer to the United States to continue working for the organization or business in a managerial or executive capacity. 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 application can only be made by the petitioning employer who meets the definition of a multinational corporation. The nexus, or relationship between the companies, can be established one of two ways. First, one of the companies is a subsidiary either of the U.S. branch or the foreign branch owns the other. Second, it is an affiliate company in which the same people or the same entities own the same percentage or close to the same portion of both entities.

A common issue that arises with the Eb-1C is when the executive who needs to be brought over is the owner and has 100 percent of the company. An effective strategy to resolve this matter is to establish a board of directors and create employment agreements to indicate that the person is an employee who can be fired. This can only be successful when done correctly.

USCIS often questions whether the position is managerial or executive in nature. Managerial positions have two components:

  1. A manager who oversees a substantial number of manager-level people and
  2. A functional manager who has 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 compared to other visa categories since the applicant can immediately file for adjustment of status, which moves a person from temporary non-immigrant status into being a green card holder in around a year, sometimes quicker.

About the Author Jon Velie

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas.com., a revolutionary Immigration platform and global Immigration network. Jon is an Amazon number one best-selling author of H1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon can be contacted at jon@onlinevisas.com or 405-310-4333 office or 405-821-5959 mobile.

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