EB-1 (First Preference) Visa Category

Alien of Extraordinary Ability Green Card

This category of employment-based immigrant visas is reserved for priority workers and persons of extraordinary ability as follows:

• Individuals who have been nationally or internationally recognized for their extraordinary ability in certain fields, such as the sciences, arts, education, or athletics
• Outstanding professors and researchers with at least three years of teaching or research experience and international recognition
• Multinational managers or executives of a U.S. company who had worked with an affiliate or branch of the company abroad for at least a year in the three years before the application is filed.

Criteria for Demonstrating Extraordinary Ability

In order to demonstrate the individual has sustained national or international acclaim and that the individual’s achievements have been recognized in their field of expertise, the individual must either include evidence of a one-time achievement (major internationally-recognized award (i.e., Nobel Prize, Pulitzer, Oscar, Olympic Medal) or 3 of the 10 listed criteria below (or comparable evidence if any of the criteria do not readily apply). No offer of employment or labor certification is required.  The person must still demonstrate, however, that he or she intends to continue work in the area of his or her extraordinary ability and that his or her work will substantially benefit the United States in the future.

• 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

Sustained National or International Acclaim

In determining whether the individual has enjoyed "sustained" national or international acclaim, USCIS should consider that such acclaim must be maintained.  However, the term sustained does not imply an age limit on the individual. An individual may be very young or early in his or her career and still be able to show sustained acclaim. There is also no definitive time frame on what constitutes sustained. If an individual was recognized for a particular achievement, the USCIS should determine whether the individual continues to maintain a comparable level of acclaim in the field of expertise since the individual was originally afforded that recognition. An individual may, for example, have achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim thereafter.

Continuing to Work in the Area of Expertise

To qualify as an individual with extraordinary ability, the individual must intend to continue to work in the area of his or her expertise. For example, in general, if an individual has clearly achieved recent national or international acclaim as an athlete and has sustained that acclaim in the field of coaching or managing at a national level, USCIS considers the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that USCIS can conclude that coaching is within the individual’s area of expertise. Where the beneficiary has had an extended period of time to establish his or her reputation as a coach beyond the years in which he or she had sustained national or international acclaim as an athlete, depending on the specific facts, USCIS may place heavier, or exclusive, weight on the evidence of the individual’s achievements as a coach or a manager.

Entry to Substantially Benefit the United States

To qualify as an individual with extraordinary ability, the individual’s entry must substantially benefit the United States in the future.

The application process for this visa category begins with the individual's employer, who must file Form I-140, Petition for Alien Worker, with the USCIS. But this condition does not apply to those who qualify as extraordinary ability workers They are allowed to file their petition themselves.

Criteria for Outstanding Professor or Researcher

A U.S. employer, including a university institution of higher learning or private employer, may petition for a professor or researcher who is internationally recognized as outstanding in a specific academic area to work in a tenured or tenure-track position (for professors) or a permanent employment (which can also include tenured or tenure track positions) in the case of research positions. The U.S. employer as the petitioner must submit evidence of an offer.

The petitioner must submit evidence to demonstrate that the individual who is professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Academic field means "a body of specialized knowledge offered for study at an accredited U.S. university or institution of higher education."

The individual must have at least 3 years’ experience in teaching or research in that academic area. The individual must be entering the United States in order to pursue tenure or tenure track teaching or a comparable research position at a university, institution of higher education, or private employer.

The individual must meet at least 2 of the 6 criteria listed below and provide an offer of employment from the prospective U.S. employer. The private employer must show documented accomplishments and that it employs at least 3 full-time researchers. No labor certification is required.

• 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 noncitizen'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

Criteria for Multinational Manager or Executive

The multinational executive or manager immigrant visa classification is permanent in nature. A permanent labor certification is not required for this classification.

The petitioner must demonstrate that the individual beneficiary has a permanent job offer in a primarily managerial or executive position with a qualifying U.S. employer. The petitioner must demonstrate that the beneficiary was employed abroad by a qualifying organization for 1 year out of the previous 3 years.

The petitioning U.S. employer must have been doing business in the United States for at least 1 year before filing a petition for a manager or an executive. Doing business means the regular, systematic, and continuous provision of goods or services or both by a qualifying organization. Doing business does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. The petitioning U.S. employer must demonstrate that it and the related organization abroad maintain a qualifying relationship; and  are both actively engaged in doing business. The petitioning U.S. employer must also show that it has been actively engaged in doing business for at least 1 year.

A petitioning U.S. employer must demonstrate that the beneficiary has been employed for at least 1 year by a related organization abroad to work in a capacity that is managerial or executive. Managerial capacity includes personnel and function managers while executive capacity focuses on a person's position within an organization. Managerial capacity includes both "personnel managers" and "function managers." As it relates to personnel managers, managerial capacity means an assignment within an organization in which the beneficiary primarily manages the organization, department, subdivision, function, or component of the organization; supervises and controls the work of other supervisory, professional, or managerial employees;  possesses authority to hire and fire or recommend those and other personnel actions (such as promotion and leave authorization) for employees directly supervised; and exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional. Further, if staffing levels are used as a factor in determining whether the beneficiary is functioning in a managerial or executive capacity, USCIS does not merely rely on the number of employees the beneficiary is supervising but looks at the beneficiary’s role and function within the organization.

As a functional manager, the beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function" within the organization. A manager may qualify for multinational manager or executive classification as a function manager if the petitioner can show, among other things, that the beneficiary has and will be primarily managing or directing the management of a function of an organization, even if the beneficiary did not or will not directly supervise any employees. As it relates to function managers, managerial capacity means an assignment within an organization in which the beneficiary primarily manages the organization or a department, subdivision, function, or component of the organization; manages an essential function within the organization or a department or subdivision of the organization; functions at a senior level within the organizational hierarchy or with respect to the function managed; and exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.  The petitioner must show that the beneficiary will primarily manage that essential function by clearly describing the beneficiary’s duties and indicating the proportion of time dedicated to each duty. While he or she may perform some operational or administrative tasks, the beneficiary must primarily manage the essential function. The petitioner must clearly demonstrate, however, that the essential function being managed is not also being directly performed by the beneficiary.

In addition, the petitioner must establish that the beneficiary will occupy a senior position in the petitioner’s organizational hierarchy or within the function managed and that the beneficiary will have discretionary authority over the day-to-day operations of that function.

USCIS considers all factors relevant to these criteria, including the nature and scope of the petitioner’s business; the organizational structure and staffing levels; the value of the budgets, products, or services that a beneficiary will manage; and any other factors, such as operational and administrative work performed by staff within the organization, that contribute to understanding the beneficiary’s actual duties and role in the business. USCIS may also consider  the beneficiary's authority to commit the company to a course of action or expenditure of funds. Function managers perform at a senior level in the organization and may or may not have direct supervision of other employees.

The term "executive capacity" focuses on a person's position within an organization. USCIS  not only looks  at the position the beneficiary intends to fill, but also of the nature and structure of the organization itself.

Executive capacity means an assignment within an organization in which the employee primarily directs the management of the organization or a major component or function of the organization; establishes the goals and policies of the organization, component, or function; exercises wide latitude in discretionary decision making; and receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. USCIS does not consider a beneficiary an executive simply because he or she has an executive title or because some portion of his or her time is spent directing the enterprise as the owner or sole managerial employee; the focus is on the primary duties of the beneficiary. In this regard, there must be sufficient staff (for example, contract employees or others) to perform the day-to-day operations of the petitioning organization in order to enable the beneficiary to be primarily employed in the executive function.

The individual beneficiary must have been employed outside the United States for at least 1 year in the 3 years preceding the petition or the most recent lawful nonimmigrant admission if the beneficiary is already working for the U.S. petitioning employer. The U.S. petitioner must have a qualifying relationship to the entity the beneficiary worked for outside the U.S. and intend to employ the beneficiary in a managerial or executive capacity. Further, the petitioner must provide evidence demonstrating that the qualifying relationship will continue to exist until the beneficiary becomes a lawful permanent resident.

A qualifying relationship exists when the U.S. employer is an affiliate, parent, or subsidiary of the foreign firm, corporation, or other legal entity. To establish a qualifying relationship, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (for example, a U.S. entity with a foreign office) or related as a parent and subsidiary or as affiliates. USCIS examines the factors of ownership and control in determining the qualifying relationship. Either the foreign or U.S. entity must own and control the other entity, or both must be subsidiaries owned and controlled by the same parent entity or person. Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control. Control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity. In situations where the petitioner has submitted documentation of a qualifying relationship based on control through possession of proxy votes, the petitioner must show that the proxy votes are irrevocable from the time of filing through the time of adjudication.

A petitioning U.S. employer may file an Immigrant Petition for Alien Workers (Form I-140) on behalf of an executive or manager.  As part of the application process, the employer must be able to demonstrate a continuing ability to pay the offered wage as of the priority date. The employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay the wage to the individual beneficiary for whom the petition is filed.