Priority Workers & Professionals

Employment-based Immigration: Priority Workers & Professionals

The EB-1 “Priority Worker” immigrant preference classification is for individuals who have “extraordinary ability” in the sciences, arts, education, business, or athletics; for “outstanding professors and researchers” in an academic or research environment; or for certain qualifying “multinational managers or executives.”  It is the highest priority of employment-based immigration under current law.

The EB-2 immigrant preference classification is for individuals who have “exceptional ability” in the sciences, arts, or business.

EB-3 classification is for individuals who qualify for permanent employment in positions requiring professionals – individuals possessing a minimum of a Bachelor’s Degree in a field directly related to the prospective employment – or “skilled workers” who possess at least two years of employment experience or related training.

EB-1 Priority Workers

Individuals of Extraordinary Ability

The first subset of the “EB-1” immigrant preference classification is for individuals who have “extraordinary ability” in the sciences, arts, education, business, or athletics.  It is subject to very stringent substantive requirements and highly restrictive interpretation by the government agency responsible for adjudicating petitions seeking this classification – the United States Citizenship and Immigration Services (“USCIS”) in the Department of Homeland Security.

Definition.  Governmental regulations define “extraordinary ability” as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.”  An individual seeking this employment-based immigrant visa classification must demonstrate sustained national or international acclaim and recognition for achievements in a particular field of endeavor.  In addition, he or she must demonstrate an intention to continue work in his or her field.

Evidentiary Requirements.  The evidence submitted with a petition seeking to classification as an “individual of extraordinary ability” must establish that the individual has sustained national or international acclaim and that his achievements have been recognized in the field of expertise.  This may be done by showing evidence of a one-time achievement, such as receipt of a major, internationally recognized award – for example, a Nobel Prize or Academy Award – or at least three of the following ten forms of documentation:

  1. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  2. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
  3. 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.  Such evidence shall include the title, date, and author of the material, and any necessary translation;
  4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;
  5. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
  6. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
  7. Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;
  8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
  9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
  10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

Exemption from Job Offer Requirement.  Neither an offer for employment in the United States nor “labor certification” is required for this classification; however, the petition must be accompanied by clear evidence that the alien 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 beneficiary detailing plans on how he or she intends to continue his or her work in theUnited States.

Government Analysis under “Kazarian.”  The government has consistently taken the position that submission of only three of the above categories of evidence alone will not be dispositive of whether an alien possesses extraordinary ability.  Instead, the categories of evidence serve merely as guidelines, and submission of evidence from three of the above categories may not be adequate.  Under a “two-step” analysis formulated in response to a 2010 Federal Court of Appeals decision in Kazarian v. US Citizenship & Immigration Services, USCIS examiners must still determine whether the individual has sustained national or international acclaim and whether the individual is one of the small percentage of individuals who have risen to the top of the particular field of endeavor.  Therefore, the more detailed and persuasive objective evidence submitted with the petition can be, the greater the likelihood of success.

Outstanding Professors and Researchers

A second sub-section of the “EB-1” classification for priority workers applies to individuals who have been recognized as outstanding professors or researchers in a specific academic field.  An individual seeking this employment-based immigrant visa classification must demonstrate qualifying experience as well as “international recognition” for achievements in that academic field.  He or she must have a qualifying offer of “permanent employment” to continue to work the field.

Definition.  The Immigration and Nationality Act (“INA”) defines outstanding professors and researchers as aliens who meet the following criteria:

  1. the alien is recognized internationally as outstanding in a specific academic area,
  2. the alien has at least 3 years of experience in teaching or research in the academic area, and
  3. the alien seeks to enter the United States for a tenured – or “comparable” – position teaching or conducting research at a university or institution or higher learning or conducting research in the field with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

Evidentiary Requirements.  USCIS regulations require that a petition for an outstanding professor or researcher must be accompanied by evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following:

  1. Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field;
  2. Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members;
  3. Published material in professional publications written by others about the alien’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
  4. Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
  5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
  6. Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

Multinational Managers and Executives

The EB-1 “priority worker” category also allows certain multinational enterprises to transfer key executives or managers to the United States for permanent relocation.  The individual to be transferred to the United States on a permanent basis must have worked in a qualifying executive or managerial capacity for the enterprise or one of its related companies abroad for at least one year prior to eligibility for permanent residence  under this subset of the priority worker category.

Qualifying Business Relationship.  The current employer abroad and the prospective employer in the United States can be a corporation, partnership, or even a sole proprietorship, and need not be a large, multinational organization.  However, a “qualifying relationship” must exist between these two entities.  The company or organization in the United States to which the employee is to be transferred must be a parent, subsidiary, affiliate or branch office of the foreign company at which he or she was previously employed.  “Subsidiary” generally refers to a company majority-owned by the former employer.  “Affiliate” is generally regarded as one of two subsidiaries, both of which are owned and controlled by the same parent.

Employment Responsibilities.   The employee to be transferred must have worked abroad as an executive or manager for at least one of the three years immediately preceding the transfer, and must be transferring to a qualifying company in the United States in a similar capacity.  The statute and regulations define these employment categories narrowly.

An executive position involves directing the management of an organization or a major component or function of that organization, establishing the goals and policies of that organization, component or function, and exercising wide latitude in discretionary decision-making.  These are generally senior level positions.

Qualifying managerial positions similarly involve specific responsibilities for an organization, department, subdivision, function or component of the organization, generally including supervision and control of the work or other professional, managerial, or supervisory level employees.  A manager will exercise discretionary authority over day-to-day operations, with specific authority to hire and fire employees or to recommend these and other personnel actions.

EB-2 Individuals of “Exceptional Ability” & Advanced Degree Professionals

The EB-2 category is for members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

Individuals of Exceptional Ability

Eligibility for EB-2 classification as an individual of exceptional ability requires that an employer file an Immigrant Preference Petition with USCIS supported by at least three of the following:

  1. An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;  
  2. Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought; 
  3. A license to practice the profession or certification for a particular profession or occupation; 
  4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
  5. Evidence of membership in professional associations; or
  6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

National Interest Waiver

A petition filed under the EB-2 classification must submitted by a US employer and be accompanied by an individual labor certification from the US Department of Labor (see “Labor Certification” below) unless exempt in the “national interest.”  USCIS may grant a waiver of the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if such waiver would be in the national interest.

Government Analysis under “NYSDOT.”  Neither the INA nor USCIS regulations enumerate specific eligibility criteria for the grant of a national interest waiver of the normal EB-2 job offer and labor certification requirements.  However, in a 1998 precedent decision, Matter of New York State Dep’t. of Transportation (“NYSDOT”), the Commissioner of the “legacy” Immigration and Naturalization Service (“INS”) determined that in order to be granted a national interest waiver, the evidence submitted in support of an EB-2 petition must persuasively demonstrate that:

  1. The field of endeavor in which the beneficiary of the petition seeks employment or otherwise to perform services in the United States must be of substantial intrinsic merit;
  2. The proposed benefit of the beneficiary’s intended employment or service in the United States must be national in scope; and
  3. The national interest would be adversely affected if labor certification were required . . . (because) the beneficiary will serve the national interest to a substantially greater degree than would an otherwise available US worker who possesses only the minimum requirements for employment in the field.

Advanced Degree Professionals

To show that the alien is a professional holding an advanced degree, the petition must be accompanied an official academic record showing that the alien has an United States advanced degree or a foreign equivalent degree; or an official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.  To show that the alien is a member of the professions, the petitioner must submit evidence showing that the minimum of a baccalaureate degree is required for entry into the occupation.

Labor Certification.  A petition to classify an individual under this classification must be accompanied by an individual labor certification from USDOL.  On May 17, 2007, USDOL published a final rule in the Federal Register making significant changes to the PERM System.  Of most importance, these changes – most of which went into effect on July 16, 2007 – include the following:

  • Prohibits  the “substitution of beneficiaries” on an application for permanent employment certification;
  • Sets a maximum validity on an approved application of 180 days unless it is used to support an immigrant preference petition, Form I-140, filed with USCIS within that period; and
  • Requires employers to pay the costs of preparing, filing and obtaining certification; “an employer’s transfer to the alien beneficiary of the employer’s costs incurred in the application process is strictly prohibited.”

Please note that we have prepared a separate “VisaNotes” memo explaining in detail the requirements and process for obtaining “labor certification through the USDOL PERM System.

EB-3 Professionals and Skilled Workers

Eligibility for EB-3 classification as a professional requires that an employer file an Application for Alien Employment Certification with USDOL under the PERM System (see above) and an Immigrant Preference Petition with USCIS supported by evidence that the alien holds a United States baccalaureate degree or a foreign equivalent degree and by evidence that the alien is a member of the professions. Evidence of a baccalaureate degree must be in the form of an official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study. To show that the alien is a member of the professions, the petitioner must submit evidence showing that the minimum of a baccalaureate degree is required for entry into the specific occupation for which employment in the United States is offered.

To show that the alien is a skilled worker, the petitioner must submit evidence showing that a minimum of two years of experience or training is required for the position offered and that the individual to be hired met the requirements for the position prior to initial hire.

Again, we have prepared a separate “VisaNotes” memo explaining in detail the requirements and process for obtaining “labor certification through the USDOL PERM System.

Adjustment of Status or Immigrant Visa Consular Processing

 The beneficiary of an approved “employment-based” (EB) immigrant petition may apply for permanent residence – a “green card” – through one of two separate procedures: applying for an immigrant visa at a US consular office abroad or for adjustment of status through USCIS.  The consular process is administered by the U.S. Department of State (“DOS”) through its National Visa Center (“NVC”) and is conducted by officials at an American Consulate in the applicant’s home country or country of last residence overseas. It generally takes six to nine months after USCIS approval of an underlying I-140 petition to obtain permanent residence through consular processing.

If the applicant for permanent residence chooses to adjust status in the U.S. instead of consular processing abroad, he or she will file an Application to Register Permanent Residence or Adjust Status, Form I-485, and accompanying applications for travel and employment documents if appropriate with USCIS.  In this case the applicant must be physically present in the United States at the time of filing.  The applicant for adjustment of status may apply for Employment Authorization and Advance Parole at the time of filing his or her application for adjustment of status.  He or she may not depart the United States until the requested travel document – “advance parole” – is issued.  It will take up to 90 days to receive an employment authorization and travel document.

Recent changes in immigration law permit concurrent filing of an application for adjustment of status with an employer’s petition for immigrant worker, thereby reducing the overall processing time for qualifying applicants who opt to adjust status in the United States.  In most cases, the actual EB-1 petition and applications for permanent residence will take in excess of 12 months under current processing estimates for completion.

We have also prepared a separate “VisaNotes” memo explaining in detail the basic requirements and process for obtaining permanent residence through consular processing or adjustment of status.

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