EB-1 Visa

To qualify for an EB1-A Extraordinary Ability immigrant visa, a foreigner must show that they have extraordinary ability in the sciences, arts, education, business, or athletics. The extraordinary abilities must be demonstrated by national/international acclaim and must be recognized by in their relevant field. 

If a foreigner is interested in self-petitioning (meaning without any employer sponsorship) for an EB1-A, they are required to show that they will work in their field of expertise and that they have risen to the top of their field with demonstrated national/international acclaim. The foreigner must, therefore, show evidence that they meet 3 out of 10 specific regulatory criteria. The regulatory criteria, as defined by USCIS, are as follows:

• Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
• Evidence of your membership in associations in the field which demand outstanding achievement of their members
• Evidence of published material about you in professional or major trade publications or other major media
• Evidence that you have been asked to judge the work of others, either individually or on a panel
• Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
• Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
• Evidence that your work has been displayed at artistic exhibitions or showcases
• Evidence of your performance of a leading or critical role in distinguished organizations
• Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
• Evidence of your commercial successes in the performing arts

USCIS will apply a two-part adjudication process to determine if an individual has met at least 3 of the 10 abovementioned criteria. USCIS will consider all submitted evidence to make a determination, so it is important that applicants provide thorough and sufficient documentary evidence in their case. It is recommended to contact and utilize an experienced immigration attorney for the application process as they can provide the best assessment and guidance on how to present and compile the necessary evidence.  

The primary advantages of applying for an EB1-A Extraordinary Ability immigrant visa is that no labor certification is required; no job offer or position is required; and processing times are faster than some other EB-1B categories.

To qualify for an EB1-B Outstanding Researcher or Professor immigrant visa, a foreigner must have a permanent job offer in their academic field in the US. The foreigner must be recognized internationally for their academic achievements and must have at least 3 years of experience in that teaching/research field. They must also show that their entry to the US would be on a tenure teaching track or comparable research position at an institution of higher education.

EB1-B Outstanding Researcher or Professor immigrant visa requires that an employer file the requisite petition for the foreigner. The application must show evidence that at least 2 of 6 specific regulatory criteria are met. As per USCIS, the following are the criteria that can be used to demonstrate such exceptional abilities:

• Evidence of receipt of major prizes or awards for outstanding achievement
• Evidence of membership in associations that require their members to demonstrate outstanding achievement
• Evidence of published material in professional publications written by others about the alien's work in the academic field
• Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
• Evidence of original scientific or scholarly research contributions in the field
• Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

An EB1-C Multinational Executive or Manager immigrant visa can be used whenever an employer or company wants to transfer an executive or manager to work in their U.S. location. A foreign employee can qualify for such an immigrant visa provided they were employees for at least three years, with one year as at least a manager of that company in a location outside of the U.S. While the foreigner must have had a managerial role, this does not necessarily mean they must have had a significant nuber of direct reports. The U.S.-located company where the foreigner will be working must have an established connection to the company outside of the U.S. This means that the foreign business or entity must be affiliated, a subsidiary of, or a parent company to the business in the U.S. where the foreigner will work. 

The EB1-C Multinational Executive or Manager immigrant visa also requires that a U.S. employer act as the petitioner on behalf of the foreigner; however, no labor certification is required. The application must include a statement from the U.S. employer stating that the foreigner will be employed in the US in a managerial or executive role and associated duties must be indicated.

It is important to note that some countries, like India and China, have a backlog for these types of immigrant visas, and green card processing times can be extensive.

The application process is the same for all EB-1 visas, regardless of their subcategory. A labor certification process is not required for EB-1 visas. A foreigner in good standing in the US can apply for an EB-1 and adjust their status concurrently. To apply for an EB-1 in such a situation, Form I-140, Immigrant Petition for Alien Worker and Form I-485, Application to Register Permanent Residence or Adjust Status are used to apply for the immigrant visa, in addition to any other required evidence. (Form I-131, Application for Travel Document and Form I-765, Application for Employment Authorization will also be submitted at this time, which will grant the applicant employment authorization and advance parole travel permission while the EB-1 is being processed).

This process applies to foreigners who are from countries where EB-1 numbers are current. As previously noted, some countries have a backlog and individuals from those locations may not be able to concurrently file their application forms. An immigration attorney should be consulted to determine which application process a foreigner qualifies for.

For EB-1 applicants outside of the U.S., the application can be filed from the foreign location through the use of Form I-140, Immigrant Petition for Alien Worker along with previously mentioned additional documents and evidence. Foreigners outside of the U.S. must also complete the DS-260 online immigrant visa application. Once the I-140 is approved and the priority date is current, the applicant must go through consular processing. This means that the applicant will have to travel to the US Embassy or consulate in their home country where they will set up an appointment to meet with a consular officer who will adjudicate their case and provide the requisite visa, if the foreigner is approved.

The priority date is the official date that USCIS receives the I-140 application form. The U.S. Department of State issues a monthly bulletin that indicates which receipt dates become eligible based on the green card category and nationality of the applicant. When the bulletin shows that applications with the receipt date are now being processed, then that means the priority date has become current.

Processing times can vary depending on the location and type of EB-1 visa category that is being petitioned. In the US, I-140s are handled at a local service center and the time frame can vary depending on the caseload of that particular center. However, a 6-month time frame for petition processing should at least be figured.

For individuals in the US, the I-485 is processed by a local service center and is also subject to caseload at that location. As previously noted, at least a 6-month processing time should be considered, although time frames can extend beyond that.

Consular processing of EB-1 applications can also vary. Applicants should figure into calculations travel and wait times associated with consular appointments and availability. These time frames can also vary depending on the country and consular location. Some consular locations are more busy than others and/or staff capacity may be more limited in some embassies/consulates. Some applicants could be waiting for many weeks to secure an appointment.

For an EB-1 immigrant visa, basic filing fees associated with the various forms and processes are listed as follows:

• Form I-140, Immigrant Petition for Alien Worker - basic filing fee: $700
• Form I-485, Application to Register Permanent Residence or Adjust Status - basic filing fees: $750-$1140. The exact fee is dependent on an applicant’s age.
• Form I-131, Application for Travel Document - basic filing fee: $575
• Biometrics fee (if applicable): $85
• I-765, Application for Employment Authorization – basic filing fee: $410
• Premium Processing fee - $2500
• DS-260 fees: Immigrant Visa Application Processing Fee - $325 & Affidavit of Support Fee - $120.

Filing fees that are made to USCIS need to be made via a money order or cashier’s check. A check or money order needs to be made payable to the US Department of Homeland Security. The entire name should be written out; initials or shorthand should not be used. If multiple fees are being paid, each fee should have a separate money order or cashier’s check. DS-260 fees are paid online during the application process.

It is also important to note that fees can change and applicants should make sure they have verified what current fees are when an application is submitted. Incorrect payments can delay processing. Applicants working with or who intend to work with an attorney should consider additional attorney’s fees when calculating the total cost of their EB-1 application.

Refunds are generally not available for application associated fees. However, if an unnecessary form and fee was requested by USCIS, this fee may be returned. If a fee amount was requested that is higher than current set fees, payment may be refunded. Finally, Premium Processing fees may be returned if USCIS fails to process the applicable form within 15 calendar days.