Under the various employment based categories, Category I based permanent residency is the most difficult to obtain. Initially, the foreign national must determine if he/she is eligible for lawful permanent residency according to the USCIS guidelines.
An applicant filing an EB1 alien of extraordinary ability application may self-petition, but an applicant filing under outstanding researcher and/or professor and multinational manager must have a sponsoring employer.
Under this category the alien’s entry into the US must substantially benefit prospectively the US. No labor certification is required for this category i.e. a specific job offer is not required for an alien in this category. The alien should be entering US to continue working in the field which the alien has extraordinary ability. Aliens with extraordinary ability are those with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." The alien must be one of "that small percentage who have risen to the very top of the field of endeavor," to be granted this classification. For example, if you receive a major internationally recognized award, such as a Nobel Prize, you will qualify for an EB-1 classification. Other awards may also qualify if you can document that the award is in the same class as a Nobel Prize. Since few aliens may receive these type of awards, EB-1 regulations call for the “3 of 10” rule, i.e. classification based on at least three of the types of evidence outlined below, is permitted. The worker may submit "other comparable evidence" if the following criteria do not apply:
10.Evidence of commercial successes in the performing arts.
For artists seeking permanent residency under this category, following is a suggested evidence list:
Expert testimonials may be submitted to show that the alien is one of those few who have risen to the top of the field. USCIS also requires documentary evidence to support this claim.
Outstanding professors and researchers are recognized internationally for their outstanding academic achievements in a particular field. In addition, an outstanding professor or researcher must have at least three years' experience in teaching or research in that academic area, AND enter the U.S. in a tenure or tenure track teaching or comparable research position at a university or other institution of higher education or with a private company employing three or more full-time researchers and an established record of documented accomplishments. Experience in teaching or research can be counted while working on advanced degree if such degree was acquired and the alien had full responsibility for the class taught, or the research has been recognized as outstanding in the academic field. If the employer is a private company rather that a university or educational institution, the department, division, or institute of the private employer must employ at least three researchers (besides the applicant engaged) full time in research activities and have achieved documented accomplishments in an academic field.
No labor certification is required but a job offer is a requirement. Under this category the petitioner has to show proof that the offered employment is of a qualifying nature, the alien has the requisite credentials and alien is outstanding in an academic field. To show that there is qualifying offer of employment, the employer must submit a letter with the petition stating the terms of the employment especially a tenured or tenure-track teaching/research position in the alien’s field or a research position having no fixed term and in which the alien will have an expectation of continued employment or a comparable position with private employer with proof that at least three full time researchers are employed having achieved documented accomplishments in the field. With respect to credentials the alien has to submit letters from current as well as former employers documenting at least three years experience in teaching or research in the field.
Evidence that the professor or researcher is recognized as outstanding in the academic field must include documentation of at least two of the following:
Some executives and managers of foreign companies who are transferred to the U.S. may qualify. A multinational manager or executive is eligible for priority worker status if he or she has been employed at least one year (any time) in the preceding three years by the overseas affiliate, parent, subsidiary, or branch of the US employer and seeks to enter the U.S to continue service to that firm or organization in a managerial or executive capacity. The subsidiary can be a joint venture if there is equal control and veto power or can be less than one-half of ownership under certain circumstances. The one-year employment abroad must be continuous.
No labor certification but a job offer by the US company is required in this category. The petitioner must be a U.S. employer, doing business for at least one year, that is an affiliate, a subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad. There is no requirement that the qualifying relationship (there must be an actual transfer of stock; neither an agreement nor a working relationship would work because both does not involve the necessary ownership and control) between the US and the foreign entity for one year at the time of the petition filing.
Definitions of terms relevant to this EB-1 category are found in 8 CFR § 204.5. “Managerial Capacity” requires management of an organization, department, component or function by the alien along with supervision and control of other supervisory, managerial or professional personnel or management of an essential function. Besides, the alien should have the authority to make personnel decisions including the right to hire and fire or functioning at a senior level if managing a function. The alien also should exercise absolute discretion over operations or a function. Under “Executive Capacity”, the alien is required to show management of an organization, department, component or function along with the authority to establish goals and policies. The alien also should show a wide range in discretionary decision-making process as well as a minimal general supervision from his/her higher officials.