Can I Benefit Under the "Current" EB1 Priority Dates?
Posted Sep 15, 2006
©MurthyDotCom
At the Murthy Law Firm, we are receiving many inquiries regarding filing cases in the employment-based, first preference (EB1) category. This request is clearly 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.
©MurthyDotCom
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 and MurthyBulletin readers.
©MurthyDotCom
EB1 Has Three Subcategories
©MurthyDotCom
EB1 has three separate subcategories of case types that can enjoy this classification. The unifying element is that none of these cases requires a labor certification. 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, etc.
©MurthyDotCom
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 would have opted for NIW now considering EA or OPR as a backup strategy to be able to file the I-485 application for adjustment and obtain the EAD and advance parole for themselves and their family members. One must realize, however, that there is a risk if the EA case is denied, as s/he would lose the EAD and advance parole.
©MurthyDotCom
Persons of Extraordinary Ability
©MurthyDotCom
This category is intended for the small percentage of individuals who have risen to the very top of their respective fields of endeavor, and 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.
©MurthyDotCom
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
©MurthyDotCom
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
©MurthyDotCom
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
©MurthyDotCom
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
©MurthyDotCom
5. evidence of the foreign national's authorship of scholarly articles in the field, in professional or major trade publications or other major media
©MurthyDotCom
6. evidence of the foreign national's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field
©MurthyDotCom
7. evidence of the display of the foreign national's work in the field of artistic exhibitions or showcases
©MurthyDotCom
8. evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.
©MurthyDotCom
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
©MurthyDotCom
10. evidence that the foreign national has performed in a leading or critical role for organizations that have a distinguished reputation
We note, however, that
simply having evidence in three out of the ten items is not sufficient. This
is a baseline, minimum requirement. 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 in our November 25,
2005 MurthyBulletin article,
Murthy Success Story :
NIW and EA Approval, available on MurthyDotCom.
©MurthyDotCom
Outstanding
Professors and Researchers
©MurthyDotCom
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.
©MurthyDotCom
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.
©MurthyDotCom
The position must be a tenured or tenure-track teaching position or a
comparable research position at an institution of higher education. For
university research positions, the job must be tenured or tenure track or of
indefinite duration. Thus, temporary research positions do not qualify.
©MurthyDotCom
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.
©MurthyDotCom
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
©MurthyDotCom
2. membership in associations in the academic field that require outstanding achievements of their members
©MurthyDotCom
3. published material in professional publications written by others about the foreign national's work in the academic field
©MurthyDotCom
4. evidence of the foreign national's participation as a judge of the work of others in the field
©MurthyDotCom
5. evidence of the foreign national's original scientific or scholarly research contributions to the academic field
©MurthyDotCom
6. authorship of scholarly books or articles in the field
As can be seen, this too
is a specific, limited category. 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.
©MurthyDotCom
Multinational
Executives and Managers
©MurthyDotCom
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 is generally 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.
©MurthyDotCom
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.
©MurthyDotCom
This category is also quite limited, although one that we at the Murthy Law
Firm regularly use for the executives of our multinational company clients.
It is not something that is available for a person who did not work for an
entity connected to the U.S. employer before entering the United States.
©MurthyDotCom
Conclusion
©MurthyDotCom
The EB1
category is not in any way uncommon, but it 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, not
EB1 - unless they satisfy the criteria outlined in this article. So, unless
one fits into these criteria, s/he cannot benefit from the fact that the EB1
dates are "Current" for nationals of all countries, as of this writing.
Copyright © 2006, MURTHY LAW
FIRM. All Rights Reserved
Copyright : Documents from this site may be printed for personal use as long as the copyright notices are included on the print-outs and the documents are not modified or altered.