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 (discussed below), including:
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 PERM seeking labor certification (confirmation that no such workers are available) on the employee's behalf. That process tends to take at least two years and involve staggering complexity. (For more information on PERM, 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.
Nevertheless, proving a priority worker's eligibility is a major undertaking. A good deal of documentation will be required of the employer (or self-petitioning worker) when starting the green-card application process; that is, when filing an EB-1 visa petition. These documents are also described below. (And this isn't even all the paperwork that will ultimately be required. Procedurally, it's only after USCIS approves the I-140 that the employee can continue the green-card application process by filing either for an immigrant visa if they're abroad or adjustment of status if they're lawfully in the United States.)
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; leading to this category having been nicknamed the "Einstein visa." The application process 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.
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.
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:
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:
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:
When an employer files an initial petition (Form I-140) for an EB-1 worker to receive a green card, it must include a large number of supporting documents. These serve to prove that the would-be immigrant has the necessary background and qualifications to apply in the priority worker category and that fit the offered job.
Below is a handy checklist of the documents that will be needed within each subcategory of the EB-1 employment visa.
If the employee is seeking EB-1A status as a worker of extraordinary ability, the visa petition filed by the employer (or individual, because this subcategory permits "self-petitions") will need to include:
If the employee will be seeking an EB-1B visa as an outstanding professor or researcher, the petition the employer files will need to include:
If seeking an EB-1C visa for a multinational manager or executive, the petition the employer files will need to include:
The above is simply a summary of the law on EB-1 eligibility, and it's not always easy to tell what type of job offers, or individual applicants, will successfully qualify in this category. For more information on who is eligible and how to prove it to the satisfaction of U.S. immigration authorities, consult with an immigration attorney who has specific experience in employment-based visas and green cards.
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