Serotte Reich, LLP – Immigration Law

EB-1 Top Scientists/Artists/Athletes, Professors/Researchers, Executives/Managers

First Preference: Up to 40,000 visas a year may be issued to priority workers, this category includes: People who have “extraordinary ability,” “outstanding professors and researchers,” and “certain multinational executives and managers,”

1. Definition. Aliens with Extraordinary Ability

• A foreign national may qualify under the EB-1 Priority Worker category if he or she has Extraordinary Ability in the sciences, arts, education, business, or athletics;

• The foreign national’s extraordinary ability must be demonstrated by sustained national or international acclaim and he or she must be recognized in the field through extensive documentation;

• The foreign national must enter the United States to continue work in the area of extraordinary ability; and

• The foreign national’s entry into the United States must substantially benefit the United States.

2. No Offer of Employment or Labor Certification Required

• Qualifying foreign nationals dot not need an offer of employment from a U.S. employer in order to file a petition for status as an EB-1 Worker with Extraordinary Ability.

• Similarly, qualifying foreign nationals do not need to file a labor certification.

• However, a petition for status as an EB-1 Worker with Extraordinary Ability must be accompanied by clear evidence that the foreign national is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the foreign national detailing plans on how he or she intends to continue his or her work in the United States.

3. Definition of Extraordinary Ability for EB-1 Purposes

• Extraordinary Ability means a high level of expertise. The foreign national must be considered an individual who has risen to the very top of his or her field. Only a small percentage of individuals have similar levels of expertise.

4. Evidence for Proving Extraordinary Ability

• A petition for an EB-1 Priority Worker of Extraordinary Ability must be accompanied by evidence that the foreign national has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.

• Proof of Extraordinary Ability may include evidence of a one-time achievement such as a major, international recognized award).

Alternatively, proof of Extraordinary Ability may include evidence of at least three of the following:

a. Documentation of lesser nationally or internationally recognized prizes or awards for excellence;

b. Documentation of membership in exclusive associations that require outstanding achievements of their members;

c. Published material about the foreign national in professional or major trade publications;

d. Evidence of participation as a judge of the work of others in the field of specification;

e. Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance;

f. Evidence of authorship of scholarly articles in professional or major trade publications;

g. Evidence of the display of the foreign national’s work at artistic exhibitions;

h. Evidence that the foreign national has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

i. Evidence that the foreign national has commanded a high salary in relation to others in the field; or

j. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

 

5. Definitions. Outstanding Professors and Researchers

• An outstanding professor or researcher must be recognized internationally in a specific area;
• Has three years experience in teaching or research in the academic area. If pursuing an advanced degree, any teaching or researching experience while pursuing that degree may be counted toward the three years if: (1) foreign national had full responsibility for the class, or (2) the research has been recognized as outstanding in the academic field.

Academic Field

1. A body of specialized knowledge offered for study at an accredited United States university or institution of higher education.

Permanent

1. In reference to a research positions, means either tenured, tenure-track, or for a term of indefinite or unlimited duration.

6. Evidence of international Recognition of Outstanding Research or Teaching in a Specified Academic Field

Evidence shall consist of at least two of the following:

o Documentation of major prizes or awards for outstanding achievement in the academic field;

o Documentation of memberships in the associations in the academic field that require outstanding achievements of their members;

o Published material in professional publications written by others about the alien’s academic work. Such material shall include the title, date, and author of the material, and any necessary translation;

o Evidence of participation, either individually or on an panel, ad the judge of the work of other in the same or an allied academic field;

o Evidence of original scientific or scholarly research contributions to the academic field; or

o Evidence of the authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

7. Offer of Employment Required (Labor Certification is Not Required)

An offer of employment shall be in the form of a letter from:

o A United States university of institution of higher learning offering the alien a tenured or tenure-track teaching position in the alien’s academic field;

o A United States university or institution of higher learning offering the alien a permanent research position in the alien’s academic field; or

o A department, division, or institute of a private employer offering the alien a permanent research position in the alien’s academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in the academic field.

8. Definitions. Certain Multinational Executives and Managers

Affiliates

o One of two subsidiaries of which are owned and controlled by the same parent or individual;

o Include entities owned and controlled by the same group of individuals, in approximately the same share or proportion of each entity; or

o Accounting firms. Includes accounting firms that have “internationally recognized name(s),” even though they are actually separate partnerships.

o Firms. Firms will be considered affiliates if they market accounting services under the same internationally recognized name and the same agreement.

o Management accounting firms. Includes management consulting firms that work with accounting firms as long as they market under an internationally recognized name or work with a successor worldwide coordinating organization even if it is not collectively owned or controlled.

Executive Capacity. An assignment in which an employee primarily:

o Directs the management of the organization or a major component or function of the organization;

o Establishes the goals and policies of the organization, component, or function;

o Exercises wide latitude in discretionary decision-making; and

o Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

Managerial Capacity. An assignment in which and employee primarily:

o Manages the organization, or a department, subdivision, function, or component of the organization;

o Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

o If any another employee or other employees are directly supervised, had the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or, if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and

o Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.

Multinational

o A qualifying entity, or its affiliate, or subsidiary, conducts business in two or more countries, on of which is the United States.

Subsidiary

o A firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or

o owns, directly or indirectly, half of the entity and controls the entity; or

o owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or

o owns, directly or indirectly, less than half of the entity, but in fact controls the entity.

Evidence

o Generally a statement from U. S. employer concerning alien’s employment with company demonstrating:

• If in the alien is outside the U.S, in the three years immediately preceding the filing of the petition the alien has been employed outside the United States for at least one year; or
• If inside the United State, alien in the United States working for the same employer, in the three years preceding entry as a non-immigrant, the alien was employers by the entity abroad for at least one year in a managerial or executive capacity;
• The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas; and
• The prospective United States employer has been doing business for at least one year.
• The petitioning company, if a foreign entity, must be operating prior to visa appointment for person to be eligible for status.
• There must be a demonstration that company is not merely a shelf corporation but is active, conducting substantial business, and is in actually need of an executive or manager.

o Managerial and Executive evidence.

• Supervisors: a first-line supervisor is considered to be acting in a managerial capacity when supervising processional employees supervised, not by virtue of his or her supervisory duties.
• Staffing Levels. Where staffing levels are used as a determining factor, an employer must show reasonable needs of the organization in light of the overall purpose and stage of development. An individual will not be assumed to be acting in a managerial or executive capacity solely based on the number of employees that individual supervises or has supervised or directs or has directed.

9. Offer of employment

The prospective employer in the United States must provide a job offer in the form of a statement, clearly describing the duties to be performed, which indicates the alien is to be employed in the United States in a managerial or executive capacity. No labor certification is needed for this classification.