EB-1 Visa for Priority Workers: Who Qualifies?

Priority workers fall into the first preference category of U.S. employment-based visas. A “visa” in this context actually means a green card, or lawful permanent residence. (Technically speaking, an “immigrant visa” is what the applicant needs in order to enter the U.S. and become a green-card holder.)

Who qualifies as a “priority” worker? This visa category is definitely reserved for highly capable people. It’s actually divided into three subcategories, including:

• workers of extraordinary ability
• outstanding university professors or researchers, and
• executives or managers of multinational companies being transferred to jobs in the U.S.

Obtaining a U.S. green card for a priority worker is typically easier than doing so in any of the other employment-based visa categories. The reason is that the employer does not need to start out by attempting to recruit U.S. workers for the job and then seeking labor certification (confirmation that no such workers are available) on the employee’s behalf. This process tends to take many months and involve staggering complexity. (For more information on labor certification, see “Procedures to Sponsor a Worker for a Green Card.”)

In fact, within the subcategory for workers of extraordinary ability (described below), the foreign national does not even need a job offer from a U.S. employer at all.

Workers of Extraordinary Ability EB-1 Subcategory

A worker with extraordinary ability in the sciences, arts, education, business, or athletics, may qualify for a green card as a priority worker. The person’s achievements must have been publicly recognized, and resulted in a period of sustained national or international acclaim. This often involves showing that the foreign national is a widely acknowledged leader in the particular artistic, educational, business, or athletic field.

No job offer is needed in this subcategory so long as the foreign national will continue working in the field of expertise after arriving in the United States. If, however, the worker has received a job offer from a U.S. employer, that employer can help with the EB-1 application by filing the required initial petition with U.S. Citizenship and Immigration Services (USCIS) on Form I-140. This agency seems more willing to place confidence in, and therefore approve, “extraordinary ability” petitions when they’ve been submitted by an employer-sponsor.

Outstanding Professors and Researchers EB-1 Subcategory

If a foreign national has an international reputation for being outstanding in a particular academic field, that person may, with an offer of work from a U.S. employer, qualify for a green card as a priority worker within the outstanding professors and researchers subcategory.

The foreign national will have to show at least three years’ experience at either teaching or research in the relevant academic field.

The job offer for which the applicant is coming to the U.S. must be a specific tenured or tenure-track teaching or research position at a university or an institution of higher learning. Or, if the position is at a research organization, it must be a permanent position. (Showing permanence can be a bit dicey in cases where the position is based on grant money that will run out in a year – but this can be overcome by showing that the employer intends to seek continued funding and that a reasonable expectation of success exists, such as a track record of renewed funding.)

Not every type of employer can make use of this visa category. It must be a “qualified employer,” meaning either a university or institution of higher education or a department, division, or institute of a private research entity with at least three full-time researchers on staff. The private U.S. employer will also need to show a history of making significant achievements in research.

Multinational Executives and Managers EB-1 Subcategory

This subcategory of the EB-1 priority worker category is limited to executives or managers who have been working for a qualified company outside the U.S. for at least one out of the past three years. Or, if the person is already in the U.S. on a temporary visa, it’s possible to qualify based on having been employed as an executive or manager at that company for one of the three years before arrival in the United States.

The foreign national must now be planning to take a managerial or executive position with a U.S. branch, affiliate, or subsidiary of the very same company. The U.S. office will need to show that it has been in business for at least one year. (The prerequisites are similar to those for L-1 intra-company transferee nonimmigrant visas.)

Not only does the foreign national need to meet the various qualification requirements under this subcategory, but the employer, including its foreign and U.S.-based offices, must also meet certain qualifications, including that the two are either:

• different branches of the same company
• a joint venture where the parent company owns half or has equal control and veto power
• related so that one company is a majority-controlled subsidiary of the other, or
• affiliated such that both companies are under the control of the same person, persons, company, or group of companies.

Care must also be taken to ensure that the job position, both inside and outside of the U.S., is demonstrably “executive” or “managerial.”

A manager, under the immigration laws, is said to be a person who:

• manages the organization, or a department, subdivision, function, or component thereof
• supervises and controls the work of other employees in supervisory, professional, or managerial positions, or manages an essential function of the organization
• is authorized to hire and fire the persons supervised, or if none are supervised, works at a senior level within the organization, and
• is authorized to make decisions concerning day-to-day operations of the activities or functions of the organization over which the manager has authority.

All four of the above criteria must be met for the foreign national’s job to be considered managerial. A supervisor below the level of middle management, often called a first-line supervisor, is not normally considered a manager for EB-1 qualifying purposes. However, an exception may be made if the employees being supervised are themselves professionals, with university degrees.

The immigration law’s definition of an executive is someone who:

• directs the management of the organization or a major part or function of the organization
• sets the goals and policies of the organization or of a part or function of the organization
• has been given extensive decision-making authority, and
• is subject to only general supervision or direction from higher-level executives, a board of directors, or the stockholders of the organization.

This is simply a summary of the law – and it’s not always easy to tell what type of job offers, or individual applicants, will successfully qualify in the EB-1 category. For more information, it’s best to consult with an immigration attorney with specific experience in employment-based green cards.