Extraordinary Ability

 

EMPLOYMENT BASED FIRST PREFERENCE

(PRIORITY WORKERS –  EB-1)

 

This category forms the first preference of the employment-based immigration. This includes persons with extraordinary ability, outstanding professors and researchers and multinational executives and managers. The three sub-groups are divided as follows:

 

1) Extraordinary Ability Aliens

 

Extraordinary ability is defined as “a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of a field of endeavor”.

The applicant’s achievements must have been recognized to a degree to enable the person to sustain national or international acclaim.

This is usually in fields of science, arts, education, business, athletics, etc.

 

The entry of a person with extraordinary ability into the United States must ‘prospectively benefit the United States’ and therefore although a specific job offer is not required for the alien applying under this category, he/she must show evidence that he/she is entering the U.S. to continue work in the field in which he/she has the extraordinary ability. This may be in the form of letters from prospective employers, pre-arranged commitments such as contracts or a statement from the applicant giving details of his/her plans for continuing the work in his/her particular field. This evidence would document that the alien’s admission would be beneficial to the United States.

 

It is important to note that ‘extraordinary ability’ is of a much higher standard than ‘exceptional ability’, which forms part of the second preference of the employment-based immigration.

 

Aliens seeking immigration in this group may file the petition (Form I-140) with the USCIS themselves and do not need a sponsor or petitioner.

 

Supporting Documents Required

Evidence supporting at least three of the following criteria is required:

 

  1. Receipt of a one-time achievement, i.e., a major, internationally recognized award.
  2. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
  3. Membership in association in the field, which require outstanding achievements as judged by recognized national or international experts.
  4. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought.
  5. Participation on a panel or individually as a judge of the work of others in the same or an allied field.
  6. Significant contributions of original work in the related field
  7. Authorship of scholarly articles in the field, in professional or major trade publications or other major media.
  8. Evidence of display of the alien’s work at artistic exhibitions or showcases.
  9. Evidence that the alien has performed in a leading or critical role for organizations/establishments that have a distinguished reputation.
  10. Evidence that the alien has commanded a high salary or other high remuneration for services or evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc or video sales.

 

If the above standards do not readily apply to the alien’s occupation, he/she may submit comparable evidence to establish his/her eligibility.

 

 

2) Outstanding Professors and Researchers

 

To apply for immigration under this sub-group, the alien must have the following qualifications:

  1. International recognition as outstanding in a specific academic field.
  2. At least three years of teaching or research in the field (research or teaching experience gained while working on an advanced degree can count toward the three year requirement but only if the research is recognized as outstanding, or if the alien had full responsibility for the courses taught).
  3. The offer of a tenured teaching or research position

Or

The offer of a research position having no fixed term and which will be deemed to be a permanent employment.

Or

The offer of a comparable research position with a private employer who has at least three full-time researchers and documented accomplishments in the research field.

 

Supporting Documents Required

In this category, although no labor certification is required, the petitioner must show a firm job offer. Along with the petition (Form I-140), the alien must submit the following documents:

  1. Letter of a firm job offer from an employer, setting out the terms of employment with regard to teaching or research as mentioned above.
  2. Proof of the alien’s qualifications.
  3. Proof that the alien is outstanding in his/her particular academic field. This may be in the form of least two of the following:
    1. Documentation of the alien’s receipt of major international prizes or awards for outstanding achievement in the academic field.
    2. Documentation of the alien’s membership in associations in the academic field that require outstanding achievements of their members.
    3. Published material in professional publications written by others about the aliens work in the field (material must include title, date and author and be translated if necessary).
    4. Evidence of the alien’s participation on a panel or individually, as a judge of the work of others in the same or allied academic field.
    5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field.
    6. Evidence of the alien’s authorship of scholarly books or articles in scholarly journals with international circulation.

 

 

3) Managerial or Executive Transferees

 

Under the new law, multinational executives and managers have been included in the priority worker preference in the third sub-group. This has made it much easier for international companies to transfer their top-level executives and managers to the United States as permanent residents without much delay as there is no labor certification required.

 

To qualify for immigration in this group, the alien must have worked for at least one year out of the preceding three, for the overseas affiliate, parent, subsidiary or branch of the U.S. employer and must be coming to work in the United States in a managerial or executive capacity.

 

‘Managerial capacity’ is defined as being required to manage an organization or department, supervise and control other professional personnel, make personnel decisions and exercise discretion over operations or functions.

 

‘Executive capacity’ is defined as being required to manage an organization or major department, establish goals and policies, exercise discretion over important decisions and be only generally supervised by the board of directors or stockholders.

 

The rules that apply to this group are basically the same as those that apply to the managers and executives who come to the United States on an L-1 non-immigrant visa.

 

Supporting Documents Required

  1. Evidence to show business activity in the U.S. as well as in the foreign state
  2. Evidence of the qualifying relationship between the US Company and the foreign Company
  3. A description and evidence of the alien’s managerial/ executive duties both with the foreign Company and with the US Company

 

Important Note

When the documents are supported by affidavits from well-known, established and influential people or organizations, it adds strength to the application. For example, an application being submitted for a scientist should contain affidavits from leading scientists, representatives and from other organizations associated with the type of research to be pursued. Documenting past achievements, as well as proof that the alien has already created jobs, turned around a business or created an increase in exports or other economic improvements should prove instrumental in gaining approval.

 

INS InfoLink on Extraordinary Ability :

 

  1. EB-1 Eligibility and Filing

 

 

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.