Ustun Law Group, PLLC

 

What is EB-1?

Employment-Based Immigration First Preference is called EB-1.

A foreign national may be eligible for an employment-based, first-preference visa:

  •  If they have an extraordinary ability
  • An outstanding professor or researcher
  • A multinational executive or manager
  • Each occupational category has certain requirements that must be met

For Extraordinary Ability

  • The Foreign National must be able to demonstrate extraordinary ability in sciences, arts, education, business, or athletics through sustained national or international acclaim
  • His/her achievement must be recognized in their field through extensive documentation
  • No offer of employment is required

Outstanding Professors and Researcher

  • The foreign national must demonstrate international recognition for their outstanding achievements in a particular academic field
  • They must have at least 3 years of experience in teaching or research in that academic area.
  • They must be entering the United States in order to pursue tenure or tenure track teaching
  •  Offered a comparable research position at a university or other institution of higher education

Note: They must include documentation of at least two listed below and an offer of employment from the prospective U.S. employer.

Examples of Documentary Evidence That A Person is an Outstanding Professor Or Researcher

  • 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

Multinational Manager or Executive

  • The foreign national must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation
  • He or She must be seeking to enter the United States to continue service to the firm or organization
  • The employment outside unites States must have been in a managerial or executive capacity with the same employer, an affiliate, or a subsidiary of the employer

Please Note: Unlike other EB-1 Categories, EB-1A or EB-1 For Extraordinary Ability category can be self petitioned. There are other benefits to this category, they must meet 3 out of 10 listed criteria given below to prove “extraordinary ability” in their field.

 Criteria for Demonstrating Extraordinary Ability

You must meet 3 out of the 10 listed criteria below to prove extraordinary ability in your field:

  • 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

What are the Benefits of an EB-1A Category?

  • No offer of employment is required.
  • An employer is not required to sponsor the foreign national.
  • The foreign national can self-petition
  • It is exempt from the preference-based system
  •  Consular processing of an immigrant visa can be done after I-140 is approved
  • After arriving in the United States, the foreign national will receive his/her green card in the mail
  • If the foreign national can prove extraordinary ability in the sciences, arts, education, business or athletics, he/she is eligible for green card
  • No labor certification (PERM) is required
  • This avoids the hassle of dealing with the Department of Labor (DOL) as well
  • It can also bypass the extended time associated with the PERM process (prevailing wage determination, advertising, and certification of Form 9089)

What is the Difference Between Rejection and Denial?

They are slightly different things:

  • If your petition is rejected that means some simple  information has been left out
  • No officer has evaluated your case
  • Denial, on the other hand, means that after evaluation an immigration officer decided that the applicant does not meet the qualifications for an EB-1A green card

What Options are Available if My EB-1A is Rejected or Denied?

There is a slight difference between the terms “Rejection” or “Denial”.

What Exactly is the Difference Between Rejection and Denial?

They have slightly different meanings in legal terms, even though they are used interchangeably in a common English sentence.

  • If your petition is rejected that means some simple  information has been left out
  • No officer has evaluated your case
  • Denial, on the other hand, means that after evaluation an immigration officer decided that the applicant does not meet the qualifications for an EB-1A green card

Refiling:

  • It is an easy fix when rejection occurred due to error in omission of information, or payment information
  • Denials on the account of criminal record or qualification might not be fixed just by refiling
  • The processing time will apply
  • Required fees need to be repaid for refiling

Motion to Reconsider or Reopen

  • A motion could be filed for reconsideration of the decision
  • It can also be reopened if additional evidence has been found to support the petitioner’s case
  • This involves sending a request to the officer who evaluated the case to reconsider in the light of a new evidence
  • Filing a motion without new evidence might not be helpful, as it will result in the second denial

Appealing

  • If the applicant believes the decision was a mistake, or that the evidence was not fully examined then it can be directly taken with a third party to have the case evaluated by the Administrative Appeals Office (AAO)
  • However, this might not be the best course of action as AAO tends to uphold the decision of the adjudicating officer

Other Options (Not EB-1A)

  • There is an option to file EB-2, and EB-3 is open if there is an employment offer for the foreign national
  • EB-5 for investors
  • EB-2 National Interest Waiver for those whose work will have a significant positive impact on the US

Consider hiring a reliable attorney. We make sure your case is strong before it makes it to USCIS. If your petition has been rejected or denied, consider taking advantage of free thirty minutes call to briefly discuss your specific situation.

For more information about our firm, becoming a client, or to schedule a consultation, please contact us using the form on this page or give us a call at 469-994-9407.