EB-1 Visa for Priority Workers: Who Qualifies and How to Prove It?

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:

• workers of extraordinary ability (EB-1A)
• outstanding university professors or researchers (EB-1B), and
• executives or managers of multinational companies being transferred to jobs in the U.S. (EB-1C)

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.)

EB-1A, Workers of Extraordinary Ability 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; 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.

EB-1B, Outstanding Professors and Researchers 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.

EB-1C, Multinational Executives and Managers 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.

Documents Needed to File an EB-1 Visa Petition

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.

For Applicants in Subcategory EB-1A

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:

• Evidence that the employee has either received a major, internationally recognized award (like a Nobel or an Oscar), or at least three of the following:
• Evidence of several lesser nationally or internationally recognized prizes or awards in the field, including team awards.
• Documentation of past or present membership in associations that require outstanding achievements of their members, as recognized by national or international experts.
• Published material about the employee in professional or major trade publications or other major media relating to the person's work.
• Evidence of participation as a judge of the work of others in the field or an allied field.
• Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.
• Evidence of authorship (or co-authorship, though this carries less weight) of scholarly articles in professional or major trade publications or other major media.
• Evidence of the display of the person's work at artistic exhibitions or showcases.
• Evidence that the employee has performed in leading or critical roles for distinguished organizations or establishments.
• Evidence that the employee has commanded a comparatively high salary or other compensation.
• Evidence of commercial success in the performing arts (box office receipts, evidence of sold-out clubs, concert halls, arenas, or stadiums, or sales data on recordings or videos).
• If the above do not fit the occupation, comparable evidence.

• Copy of U.S. employment contract, an employer letter, or a statement written by the employee, explaining how they will continue doing extraordinary work in the United States.

For Applicants in Subcategory EB-1B

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:

• At least two documents from the following list to show international recognition in the academic field:
• Evidence of the receipt of major prizes or awards for outstanding achievement in the academic field;
• Evidence of membership in associations in the academic field -- associations that require outstanding achievements for membership.
• Published material in professional publications written by others about the employee's work. Mere citations to the work in bibliographies are not sufficient.
• Evidence of participation as a judge of the work of others in the same or an allied field.
• Evidence of original scientific or scholarly research contributions to the academic field.
• Evidence of authorship of scholarly books or articles in scholarly journals having international circulation.
• Evidence of at least three years of teaching or research experience in the field (such as letters from former employers).
• If it is a university position, a letter or contract from the university stating that the U.S. position is either a tenured, tenure track, or permanent researcher position.
• If the employer is in private industry, evidence that it has a history of significant achievements in research, employs at least three other full-time research workers, and intends to hire the sponsored individual for a permanent research position.

For Applicants in Subcategory EB-1C

If seeking an EB-1C visa for a multinational manager or executive, the petition the employer files will need to include:

• Notice of approval of an individual L-1 petition or blanket L visa, if any (recommended, not required).
• Documents proving employment as an executive or manager with the parent or affiliate company for at least one of the past three years outside of the U.S. (or, if the employee is already in the U.S., for one of the three years before arrival).
• Documents proving that the employee will be working in an executive or managerial capacity, including a description of the job duties.
• Organizational charts for both the foreign and U.S. companies.
• Job descriptions and qualifications of subordinate employees.
• Accountant's financial statements, including profit and loss statements, and balance sheets, or annual reports, of both the U.S. and foreign company for the past two years.
• Payroll records of the foreign company showing the employee's employment abroad for at least the required one year.
• Promotional literature describing the nature of the employer's business, both U.S. and foreign (recommended, not required).
• Copy of the business lease or deed for the premises of the U.S. business.
• Documents proving that the U.S. employer is either the same legal entity or in an affiliate or subsidiary relationship with the overseas employer, and has been doing business for at least a year, including such documents as:
• Articles of incorporation or other legal charter or business license of the foreign business.
• Articles of incorporation or other legal charter or business license of the U.S. business.
• Tax returns of the U.S. business for the past two years, if available.
• If the company is publicly held, annual shareholder reports of both the U.S. and foreign companies.
• If either company is publicly held, statements from the secretary of the corporation attesting to how the companies are related.
• For private companies, copies of all outstanding stock certificates or other documents to show ownership, such as an operating agreement for a limited liability company.
• If a joint venture, copy of the joint venture agreement.

Getting Legal Help With Sponsoring an EB-1 Worker

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.