Can I Benefit Under the “Current” EB1 Priority Dates?

For many years, the Murthy Law Firm has received inquiries for regarding filing cases in the employment-based, first preference (EB1) category. These requests clearly are motivated by retrogression (or the non-availability of visa numbers) for many in the employment-based, second (EB2) and third (EB3) preference categories. Many contact us simply asking, “Since the EB1 priority date is current, can you file my case in that category?” These individuals look at the mere fact that, as of this writing, EB1 is current for all areas of chargeability and they want to somehow put themselves into this category.

We do regularly file EB1 cases. EB1 is a narrow or limited category, however, which only works for certain specific case types. To answer the question of which cases potentially can be filed in EB1 and which cannot, we summarize the basic requirements for MurthyDotCom readers.

EB1 Has Three Subcategories

EB1 has three separate subcategories of case types that can enjoy this classification. The unifying element is that none of these cases requires a PERM labor certification approval. Each starts at the I-140 petition stage. The categories are: Persons of Extraordinary Ability (EA); Outstanding Professors and Researchers (OPR); and Multinational Executives and Managers (MET). There are no other types of EB1 cases. A labor certification-based EB2 or EB3 cannot simply be switched over to EB1 when an individual has more work experience, or other enhanced qualifications.

There is some overlap between the EA cases and OPR. A candidate could possibly qualify for either EA or OPR, or both. Depending upon the circumstances, the same individual may also qualify for the EB2, or National Interest Waiver (NIW), category. Thus, we often see those who previously opted for NIW now considering EA or OPR as a strategy to be eligible for permanent residence at a much earlier time than would be the case under EB2.

Persons of Extraordinary Ability

This category is intended for the small percentage of individuals who have risen to the very top of their respective fields of endeavor. This category can be based on self-sponsorship. That is, the foreign national does not need an employer as the sponsor. The person of “extraordinary ability,” however, must seek to enter and/or remain in the United States to continue to work in his or her area of prospective benefit to the U.S. The extraordinary ability can be in the sciences, arts, education, business, or athletics. This ability must be demonstrated by sustained national or international acclaim. There must be extensive documentation of the recognized achievements in the field.

The required evidence of sustained national or international acclaim can include evidence of a one-time achievement, such as a major international award. The typical example of this is a Nobel Prize. For those who have not received such accolades, it is necessary to show documentation of three categories of evidence out of a list of ten. The categories of evidence are:

1. Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor

2. Documentation of membership to associations in the field for which the classification is sought, which require outstanding achievements of their members as judged by recognized national or international experts in their disciplines or fields

3. Evidence of the candidate’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought

4. Published material about the individual in professional or major trade publications or other major media, relating to the foreign national’s work in the field for which classification is sought

5. Evidence of the foreign national’s authorship of scholarly articles in the field, in professional or major trade publications or other major media

6. Evidence of the foreign national’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field

7. Evidence of the display of the foreign national’s work in the field of artistic exhibitions or showcases

8. Evidence of commercial successes in the performing arts, as shown by box office receipts or sales of recordings.

9. Evidence that the foreign national has commanded a high salary or other significantly high remuneration for services, in relation to others in the field

10. Evidence that the foreign national has performed in a leading or critical role for organizations that have a distinguished reputation

It should be noted, however, that simply having evidence in three out of the ten items is not sufficient. This is a baseline, minimum requirement. Under current USCIS policy guidelines, if the three-out-of-ten requirement is satisfied, the USCIS again reviews the evidence as a whole to determine if the overall standards are met. Most successful applicants have substantial documentation in at least three of the categories. It is a highly-selective category, but it is possible for the right type of candidate. One example of a successful case is described on MurthyDotCom in, Murthy Success Story: EB1 Extraordinary Ability Approval After USCIS Denial, 08.Oct.2010.

Outstanding Professors and Researchers

The second EB1 category is for outstanding professors and researchers. This category requires the sponsorship of the employer. Like all of the EB1 categories, it does not require a labor certification. The employer, however, must file the I-140 petition with a written job offer for the proper type of permanent employment as a professor or researcher.

The basic requirements are that the individual must be recognized internationally as outstanding in a particular academic area, and must have a minimum of three years of experience in either teaching or research in the area.

For cases filed by colleges and universities, the position must be a tenured or tenure-track teaching position or a comparable research position. Comparable research positions are those that are tenured or tenure track or of indefinite duration. Thus, temporary research positions do not qualify.

For cases filed for researchers with private (non-university) employers, the company must show that it employs three or more full-time persons in a research capacity and that the department, division, or institution has achieved documented accomplishments.

In order to establish the requirement that the professor or researcher is internationally recognized as outstanding in her/his field, it is necessary to provide documentation in at least two of the following six categories.

1. Receipt of major prizes or awards

2. Membership in associations in the academic field that require outstanding achievements of their members

3. Published material in professional publications written by others about the foreign national’s work in the academic field

4. Evidence of the foreign national’s participation as a judge of the work of others in the field

5. Evidence of the foreign national’s original scientific or scholarly research contributions to the academic field

6. Authorship of scholarly books or articles in the field

As can be seen, this too is a specific, limited category. The same concept of two-layer review explained above, applies to OPR cases. It is not enough simply to have evidence that falls within two of the six categories. As with EA, we successfully represent many clients in connection with OPR cases. For many accomplished professors and researchers, it is a viable category if an employer is willing to sponsor the petition.

Multinational Executives and Managers

The third and final EB1 category is for Multinational Executives and Managers. These cases must be sponsored by an employer, but also do not require a labor certification. This category often is used for persons who are in the nonimmigrant L1A category. The requirements are that there must be a qualifying relationship between a U.S. employer or sponsor and a foreign operation for which the employee worked abroad. The candidate must have been employed abroad for one year out of the past three years for the qualifying employer. This one-in-three-year requirement can be met if the employee is in the U.S. for more than three years, if s/he is working for the same employer (or affiliate / subsidiary) and was employed for at least one year out of the three years abroad before coming to the United States.

The individual must be coming to the U.S. to provide managerial or executive level services to the same employer or a subsidiary or affiliate. There are strict definitions of managerial / executive that must be met. Essentially, these are high-level managers and executives, who are responsible for directing the company or an important department or component of the company.

This category is also a very specific, limited category, although one that we at the Murthy Law Firm regularly use for the executives and high level managers of multinational company clients. This category is not available for a person who did not work for an entity connected to the U.S. employer before entering the United States.

Conclusion

The EB1 category is in no way uncommon, but each of its subcategories is aimed specifically at a narrow group of candidates. It is very useful for the appropriate cases, but most employment-based immigration cases fit within either EB2 or EB3. Those who are able to satisfy the criteria outlined in this article, may be able to benefit from the EB1 category. Others who do not fit these criteria cannot benefit from the fact that the EB1 dates are “current” for nationals of all countries, as of this writing.

Originally published 15.Sep.2006, this article has been updated for MurthyDotCom readers.

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