Labor Certification Process
Extraordinary Ability & Multinational Executives/Managers
Advanced Degrees / Exceptional Ability
Professional, Skilled Workers & Others
EB-1 Priority Workers
- Aliens of Extraordinary Ability;
- Outstanding Professors and Researchers;
- Certain Multinational Executives and Managers.
The first preference category does NOT require an employer to file a labor certification(PERM) (which is a time and cost consuming process) as a pre-condition to issuing an immigrant visa. In other words, persons falling under the first preference category are not required to establish that there are no qualified U.S. workers available for the proposed position.
EB-1A (Alien of Extraordinary Ability):
The EB-1A Extraordinary Ability Immigrant Status is for immigrants who are the "best and the brightest" in the fields of arts, sciences, business, education or athletics. The extraordinary ability subcategory does not require a specific job offer, so long as the alien states that he or she will continue to work in the field of extraordinary ability in the US. In other words, the alien may file an immigrant visa by himself or herself, without having an employer to sponsor the petition.
"Extraordinary ability" is defined by USCIS regulations as a "level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor." An alien who seeks to qualify himself as an immigrant with extraordinary ability must show documentation meeting three of the following criteria:
- Receiving a lesser national or international prize or award for excellence in field of endeavor,
- Membership in associations requiring outstanding achievements of their members,
- Published material about the prospective immigrant’s work in professional journals, trade publications or major media,
- Participation as a judge of others in the field of expertise,
- Original scientific, scholarly or artistic contributions of major significance in the field of expertise,
- Authorship of scholarly articles in the field, published in professional journals or major media,
- Display of the prospective immigrant’s work at artistic exhibitions or showcases in more than one country,
- Performance in a lead, starring or critical role for organizations with a distinguished reputation,
- High salary in the field of expertise, and
- Commercial success in the performing arts.
EB-1B (Outstanding Professors and Researchers:
A professor or researcher may be qualified for the EB-1 Outstanding Professors and Researcher Immigrant Status if he or she has at least three years of experience in teaching or research and has received international recognition for his or her work in a specific academic field. Unlike immigrants in the extraordinary ability subcategory, an applicant for this category must hold a tenured-track teaching or research job offer from a U.S. university, or a research position with a comparable private or non-profit research institute. The employer, however, is NOT required to obtain a Labor Certification (PERM) for the position offered to the alien.
An alien can demonstrate that he or she has received national or international recognition in the academic field by meeting two of the following criteria:
- Receipt of a major international prize or award for outstanding achievement in the academic field;
- Membership in associations that require outstanding achievements of their members;
- Material in professional publications written by others about the alien's work;
- Participation as a judge of the work of others in the field;
- Original contributions in the field, or
- Authorship of scholarly books or articles in journals with international circulation.
The applicant for the outstanding professor and researcher category must also provide proof of employment history that he or she holds at least three years of experience in teaching or research.
EB-1C (Certain Multinational Executives and Managers)
An alien worker may qualify for the EB-1 multinational executive or manager immigrant status if:
- The alien has been employed for at least one year by an affiliate or subsidiary of the U.S. employer. Specifically, if the applicant is outside the U.S., then the 1 year of employment must be within the prior three years; if the applicant is in the U.S., then the 1 year of employment must be within the three years prior to the applicant’s admission into the U.S. as a nonimmigrant worker.
- The alien seeks to enter the U.S. in order to continue the employment with the same employer, an affiliate or a subsidiary of the employer, in a managerial or executive capacity.
A person is performing services in a managerial capacity when he or she:
- Manages the organization, department, subdivision, function or component;
- Supervises and controls other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
- Has authority to make personnel decisions or recommend personnel actions (if another person directly supervises employees); and
- Exercises discretion over day-to-day operations of the activity or function.
A person is performing services in an executive capacity when he or she:
- Directs the management of the organization or a component or function;
- Establishes goals and policies;
- Exercises a wide latitude in discretionary decision making; and
- Receives only general supervision or direction from higher level executives, board of directors, or stockholders.
Certain multinational executives/ managers does not require a labor certification. They must, however, obtain an employment offer letter from the prospective U.S. employer, indicating the alien worker will be employed in the U.S. in a managerial or executive capacity.
Green Card Application:
Currently, in the EB-1 preference category, there is no waiting period for filing Green Card applications. An applicant may concurrently file I-485 Adjustment of Status (Green Card) application with an I-140 Immigration Petition. Once the USCIS is satisfied that the proof enclosed in the Form I-140 Petition meets the requirements for EB-1 category, the Service will immediately process the I-485 application and grant the alien worker legal permanent resident status.