Every year, more than 40,000 immigrant visa numbers are available for the first employment-based preference (EB-1). This category is open to aliens of extraordinary ability, outstanding professors or researchers, and certain multinational executives and managers.
Unlike the last two classes of workers, the extraordinary ability alien does not need a job offer from a U.S. employer. The extraordinary ability alien may “self-petition” or file an I-140 him/herself. There is also no labor certification requirement for workers in the EB-1 category.
The demand for this category is low. In 2010 for instance, only 5,198 applications were filed. At the same time, however, approval can be difficult to obtain. Of those 5,198 applications, only 62% were approved and this is already the highest approval rate since 2005.
Nonetheless, for those who can meet its high requirements, the EB-1 is a good option not only because of the exemption from the job offer and labor certification requirements but also because there is currently no visa backlog under this category.
In order to qualify, the foreign national must show that he has extraordinary ability in the sciences, arts, education, business or athletics. He must be able to demonstrate that his level of expertise indicates that he is one of a small percentage of those who have risen to the very top of the field of endeavor.
The foreign national must have been recognized in his field and received acclaim for those accomplishments. This can be done in either of two ways. First, it can be through a one-time achievement in the form of an internationally recognized award. In reality, however, very few people receive this type of international acclaim.
More frequently, applicants use the second way of demonstrating extraordinary ability status which is by submitting evidence of at least three of ten criteria, or the so-called “three-out-of-ten” rule.
These criteria are: receipt of lesser nationally or internationally recognized prizes or awards for excellence; membership in associations in the field that demand outstanding achievement of their members; published material about the alien in profession or major trade publications or other media; evidence of original contributions of major significance to the field; authorship of scholarly articles; display of the alien’s work at artistic exhibitions or showcases; evidence of performance in a leading or critical role for organizations that have a distinguished reputation; evidence of high remuneration in relation to others in the field; and evidence of commercial success in the performing arts.
Published material about the foreign national must relate to his work in the field for which the classification is sought and must contain the title, date and author of the material and a translation if necessary. As for the criterion of proof of membership in an association, the focus of the USCIS’s inquiry is the requirements for membership and not the association’s overall reputation.
When it comes to evidence of contributions of major significance to the field, the foreign national must show that his contributions significantly influenced the field and place him significantly above his peers.
Evidence of high remuneration as compared to others in the field is also helpful but less so for individuals in science or education where salary levels are not good indicators of the worker’s ability, unlike in athletics or the performing arts.
In order for the extraordinary ability alien to be eligible for a visa under EB-1, his entry must “substantially benefit prospectively the United States”. This means that he must continue to work in his field upon admission to permanent residence.