Overview of Employment-Based Filing Categories 

EB1

§  Persons of Extraordinary Ability in the Sciences, Arts, Education, Business, or Athletics

§  Outstanding Professors and Researchers

§  Multinational Executives and Managers

Please note, Labor Certification is not necessary if the permanent residency filing is based on the EB1 filing category.

EB2

§  Workers with Advanced Degrees

§  Workers with Exceptional Ability in the Sciences, Arts, or Business

EB3

§  Skilled Workers and Professionals

WHY DO THE FILING CATEGORIES MATTER? 

#1: FILING CATEGORY DETERMINES WHO FILES THE PETITION

EB1 Extraordinary Ability category allows alien to self-petition.  All other categories require the petition be filed by the employer.

#2:  FILING CATEGORY DETERMINES WHETHER LABOR CERTIFICATION IS REQUIRED

All EB1 filing categories do not require Labor Certification.

#3:  FILING CATEGORIES HAVE DIFFERENT PROCESSING TIMES

Quota limits apply in each category per country per year.  As such, there are often significant advantages to filing in one category versus another category due to quota backlogs.  The US Department of State publishes a monthly ‘Visa Bulletin’ which lists the status of the various categories.  Please visit the ‘Immigration Links’ page of our website (www.infinitilaw.com) for the current visa bulletin.

Concurrent filing of Steps 2 & 3 are allowed by the CIS when the priority date is current at the time of filing. 

WHAT DETERMINES THE FILING CATEGORY? 

The employer’s requirements for the position determine the filing category, not the beneficiary’s background.  That being said, the beneficiary must of course meet the requirements for the position as identified by the employer.  Also, the minimum requirements noted by the employer must be the true minimum requirements for the position (i.e. the employer cannot previously have hired someone for the position with requirements below those listed).

EB1:  MULTINATIONAL EXECUTIVES  AND MANAGERS

There is a subcategory in the EB1 category for multinational executives and managers to help facilitate the easy transfer of executives.  An I-140 petition is required to be filed by the employer as with most employment-based green cards, however, no labor certification is required.

REQUIREMENTS

To qualify for immigration as an executive or manager, the alien must have worked for the petitioner for at least one year out of the last three years.  This does not need to have been completed in one stretch, but can be aggregated.  This work must be in an executive or managerial capacity.  Also, the alien must be coming to the US to work in an executive or managerial capacity.  If the alien is already in the US, the required one year of employment in the past three will be determined by looking at the three years prior to the alien’s transfer to the US.  The US business must have been established for at least one year before filing the petition.

DEFINITION OF EXECUTIVE CAPACITY

For a person to be considered an executive, the job must meet the following requirements:

·        Manage an organization or major component

·        Have authority to make policy and establish goals

·        Have discretionary decision-making authority

·        Be subject to only general supervision from higher executive, the board of directors, or stockholders.

The overall size of the organization is a factor in determining executive capacity.  The larger the organization, the more reasonable it will be seen to require the international transfer.

EB1:  OUTSTANDING PROFESSORS AND RESEARCHERS

While no labor certification is required, this category does require the existence of a job offer from a college, university, research institute, or private company.  For a college or university teacher, the job must be for a tenured or tenure-track position.

Individual must show international recognition as being outstanding in a specific academic area.  To qualify must meet two of the following criteria:

·         Receipt of a major award for outstanding achievement in the specific field

·         Membership in academic associations that require outstanding achievements as a condition of membership

·         Published discussions of your work in professional journals

·         Participation as a judge of the work of others in the same or a related field

·         Original scientific or scholarly research

·         Authorship of scholarly books or articles

·         3 years experience as a teacher or researcher

EB1:  ALIENS WITH EXTRAORDINARY ABILITY IN THE SCIENCES, ARTS, EDUCATION, BUSINESS, OR ATHLETICS

Requires extensive documentation demonstrating sustained national or international acclaim with recognized achievements.  Three of the following must be shown:

·         Receipt of a national or international award in your field

·         Membership in an association that required outstanding achievement as a condition of membership

·         Published material about yourself in a professional, trade, or major media publications

·         Reviews or discussions of your work in a major publication or other major media

·         Your participation as a judge of the work of others in the same or a related field

·         Original contributions, usually through publication, of major significance in your field

·         Authorship of scholarly articles

·         Display of your work at significant exhibitions

·         Performance in a significant role for organizations or establishments that have a distinguished reputation

·         Receipt of a higher salary than is usual in the field

·         Commercial success in the performing arts as shown by box office receipts or sales records

No specific job offer is required in this category; however, some evidence must be presented to show that the individual intends to continue work in this field.

EB2:  MEMBERS OF PROFESSIONS HOLDING ADVANCED DEGREES

To be a “member of the professions” it means that to do your job a person needs at least a bachelor’s degree.  “Advanced Degree” equals the equivalent of a United States master’s degree or higher (Bachelor’s degree plus five years of experience in the field usually qualifies as well). 

EB2:  EXCEPTIONAL ABILITY IN SCIENCES, ARTS, OR BUSINESS

To qualify, three of the following must be provided:

·         An official academic record showing that you have a degree related to the area of exceptional ability.

·         Evidence that you have at least 10 years of full-time experience in the job you are being petitioned for

·         A license to practice your profession

·         Evidence that your salary reflects your exceptional ability

·         Membership in professional associations

·         Evidence of recognition for achievements and significant contributions in your field.

EB3:  SKILLED WORKERS AND PROFESSIONALS

Bachelors degree or equivalent required for ‘professionals’ classification; Two years of higher education or training required for ‘skilled worker’ classification