Intro – First presence (EB-1) employment based green card category

The first preference employment based green card category is available to aliens of “extraordinary ability”, “outstanding professors and researchers”, and “multinational executives and managers.”

Like the National Interest Waiver (NIW), the approval of a PERM Labor Certification Application is not a requirement for this category.

Please see below for more information pertaining to the sub-categories of EB-1: “extraordinary ability”, “outstanding professors and researchers”, and “multinational executives and managers.”

Aliens of extraordinary ability (EB-1(a))

An individual who falls into the extraordinary ability category of EB-1 is one who works in the sciences, arts, education, business or athletics.

Like the National Interest Waiver (NIW), aliens applying for a green card in this category may do so without having an offer of employment. However, an applicant in this category does need to prove that he/she intends to continue to pursue his/her area of expertise in the United States.

Furthermore, as “extraordinary ability” sugggests, an applicant in this category must be highly accomplished and have demonstrated “sustained national or international acclaim”, which must be shown through extensive documentation, as discussed below. Examples are top-rated athletes, well-known artists of various types, top scientists, engineers, doctors, researchers, journalists, etc.

“Extraordinary Ability” defined: It is defined by 8 CFR 204.5(h)(2) as 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.”

Suggested Evidence: As stated above, an applicant in this category must demonstrate “sustained national or international acclaim” and high recognition in his/her field. A highly prestigious international award, such as the Nobel Prize may be enough to prove this.

If an award of this nature is not available, then documentation of any three of the following is required:

  1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  2. Membership in associations that require outstandng achievements of their members, as judged by recognized national or international experts;
  3. Discussion about the alien’s work appearing in professional or major trade publications or other major media;
  4. Participation, either individually or on a panel, as a judge of the work of others in the same or an allied field;
  5. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance;
  6. Authorship of scholarly articles in professional or major trade publications or other major media;
  7. Display of the alien’s work at artistic exhibitions or showcases;
  8. Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
  9. Command of a high salary or other significantly high remuneration for services, in relation to others in the field;
  10. Commercial successes in the performing arts, as shown by box office receipts or record, CD or video sales.

In some instances being able to show 3 of the 10 above may not be enough, as USCIS may required additional evidence to show extraordinary ability.

Outstanding professors and researchers (EB-1(b))

Individuals in this category must be recognized as outstanding in their specific academic field and have 3 years experience in teaching or research in the academic field. The individual applying under this category must be seeking one of the following:

  • a tenure or tenure track teaching position;
  • a comparable position at a university or institute of higher education to conduct research; or
  • a comparable position to conduct research with a private employer if the private employer employs at least 3 persons full-time in research activities and the specific department or institution has achieved documented accomplishments in the particular field.

The professor or researcher must show two of the following to be recognized internationally as outstanding in his/her academic field:

  • Evidence of original scientific research.
  • Published material in professional publications written by others about the applicant’s work.
  • Authorship of scholarly books or articles in the field.
  • Receipt of major prizes or awards for outstanding achievement.
  • Evidence of the person’s participation as a judge of the work of others.
  • Membership in an association which requires outstanding achievement.

Multinational executives and managers (EB-1(c))

Individuals applying under this category must be seeking to work in a managerial or executive capacity for the same employer (subsidiary or affiliate also qualifies). The foreign national must have been employed abroad for one year during the past three years by the same employer (subsidiary or affiliate qualifies).

If the individual has been in the United States in a non-immigrant status, such as the L-1 or H1B status for the past three years, then the “one of three year requirement” may be met by looking back to the period preceeding his/her entry into the United States in a nonimmigrant status.

Managerial position

An individual working in this capacity must meet the below items.

  • manages the organization, department, subdivision, function or component;
  • supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
  • has authority to hire and fire or recommend personnel actions, or if no direct supervision, functions at a senior level; and
  • exercises discretion over day-to-day operations of the activity or function.

Executive position

An individual working in this capacity must meet the below items.

  • directs the management of the organization or a component or function;
  • establishes goals and policies
  • exercises wide latitude in discretionary decision making; and
  • receives only general supervision or direction from higher level executives, board of directors or stockholders.

Individuals may qualify for more than one of the above categories and it is actually possible to submit an application for more than one category.

In addition, another tactic that is often used to hedge a green card strategy is to apply under both EB-1 as an extraordinary alien or one of the other EB-1 classifications and apply under the National Interest Waiver (NIW) category of EB-2.

Assuming you are not subject to a country backlog in the EB-2 category (Indian and Chinese nationals currently are), this can be a great way to increase your odds, as there is a lot of overlap between the EB-1 categories and the National Interest Waiver.

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