EB-1 Extraordinary Ability

EB1 Extraordinary Ability Petitions for Engineers

by

EB1 Extraordinary Ability Petitions for Engineers

The EB1 extraordinary ability green card allows anyone in the arts, sciences, business, education or athletics to sponsor their own green card.  No job offer or labor certification is required.  The requirements for this category are quite high but not insurmountable.  Our office has handled thousands of immigration cases and have secured many EB1 approvals for our clients.  Many people believe that the EB1 category is limited to scientists or researchers or those who have won Nobel prizes.  This is simply not the case.  We have helped many people in business fields with job titles like Subsea Intervention Engineer, Project Engineer, Computer Engineer, Industrial Engineer, Chemical Engineer, Mechanical Engineer self sponsor through the EB1 category.

In order to qualify for EB1 classification, you must be able to prove you meet three out of the following ten items:

  • 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, as judged by recognized national or international experts;
  • Published material about the alien in professional or major trade publications;
  • Evidence that the alien is a judge of the work of others in the field;
  • Evidence of the alien’s original contributions of major significance to the field;
  • Authorship of scholarly articles;
  • Display of the alien’s work at artistic exhibitions or showcases;
  • Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  • Evidence that the alien commands a high salary in relation to others in the field; or
  • Evidence of commercial success in the performing arts.

None of our clients have sufficient documentation to argue all of these elements and it is not necessary to meet all of them, only three.  We typically have enough documentation to argue 4-5 and as long as we can prove three, that is enough.  Typically engineers like Project Engineer, Computer Engineer, Industrial Engineer and other people in the engineering fields have similar types of experience and accomplishments.  Awards are rare and usually company specific and none have any artistic exhibitions or performing art success.  However, we were able to help our clients to document performance evaluations, business proposals or project management to win judge criteria.   Many projects result in economic benefits, job creation, market share increase or other specific benefits.   Engineers normally do not always have job titles that appear as if they are in leadership positions but, in fact, the actual roles and duties they perform can be shown to be leading or critical for entire divisions of major companies.  We were able to show that their role was leading or critical in their organization.  These are the most common types and if you have made accomplishments in these three areas, then you may have a good EB1 case.

EB1 Extraordinary Ability Petitions for Engineers

by

EB1 Extraordinary Ability Petitions for Engineers

The EB1 extraordinary ability green card allows anyone in the arts, sciences, business, education or athletics to sponsor their own green card.  No job offer or labor certification is required.  The requirements for this category are quite high but not insurmountable.  Our office has handled thousands of immigration cases and have secured many EB1 approvals for our clients.
Many people believe that the EB1 category is limited to scientists or researchers or those who have won Nobel prizes.  This is simply not the case.  We have helped many people in business fields with job titles like Subsea Intervention Engineer, Project Engineer, Computer Engineer, Industrial Engineer, Chemical Engineer, Mechanical Engineer self sponsor through the EB1 category.

In order to qualify for EB1 classification, you must be able to prove you meet three out of the following ten items:

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, as judged by recognized national or international experts;
Published material about the alien in professional or major trade publications;
Evidence that the alien is a judge of the work of others in the field;
Evidence of the alien’s original contributions of major significance to the field;
Authorship of scholarly articles;
Display of the alien’s work at artistic exhibitions or showcases;
Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
Evidence that the alien commands a high salary in relation to others in the field; or
Evidence of commercial success in the performing arts.

None of our clients have sufficient documentation to argue all of these elements and it is not necessary to meet all of them, only three.  We typically have enough documentation to argue 4-5 and as long as we can prove three, that is enough.  Typically managers like IT Managers, Project Managers and other people in the business field have similar types of experience and accomplishments.  Awards are rare and usually company specific and none have any artistic exhibitions or performing art success.  However, most of our clients do judge the work of the peers in the form of performance evaluations, business proposals, or by managing specific projects.  Most of our clients are able to show that projects that they have managed or lead are significant and have made an impact in the field.  Many projects result in economic benefits, job creation, market share increase or other specific benefits.   Managers by definition are leadership positions.  Most of our clients are able to show that their role was leading or critical in their organization.  These are the most common types and if you have made accomplishments in these three areas, then you may have a good EB1 case.

Feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com for an evaluation.

EB1 for Physicians

by

EB1 for Physicians

We have successfully helped many physicians obtain self sponsored EB1A green cards.  When we take a case, we look at the overall accomplishments of the client. Some clients believe that you have to have thousands of publications or citations to obtain an EB1A approval.  The truths is none of our approved EB1A clients have thousands of publications or citations.  We have many clients who are managers, software engineers, IT managers, athletes and physicians who did not have any publications or citations.  As a physician, if you have publications or citations, we can use them.  However if you do not have any, we will help you build a case to evidence other criteria that can be used instead.  The minimum is 3/10 but let us identify ways to argue more than the minimum to give you the best chance for approval.  Our goal is to make the case strongest possible and present it the way that USCIS wants to see it.

Here are the EB1 criteria:

  • 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, as judged by recognized national or international experts;
  • Published material about the alien in professional or major trade publications;
  • Evidence that the alien is a judge of the work of others in the field;
  • Evidence of the alien’s original contributions of major significance to the field;
  • Authorship of scholarly articles;
  • Display of the alien’s work at artistic exhibitions or showcases;
  • Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  • Evidence that the alien commands a high salary in relation to others in the field; or
  • Evidence of commercial success in the performing arts.

You can send your CV to info@messersmithlaw.com for an evaluation or give us a call at 305 515 0613.  We’re here to help you achieve your goal.

How Many Citations Needed for EB1?

by

How Many Citations Needed for EB1?

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

Many applicants are concerned about their low citation counts.  In reality, citations are only helpful in regards to one of the ten listed criteria – original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field.  In many fields where publications are not the norm such as in IT or management professions, citations are completely irrelevant and in other scientific or academic fields like Economics, Business, Computer Science, or Mathematics, they are very hard to come by.  It is very normal for Economics papers to have no citations or be in the low single digits.  This is ok and is not fatal to an EB1 case.  It simply means that we need to identify other criteria on the list to get your case approved.  We have handled hundreds of self petitioned green card such as EB1 and know what USCIS wants to see in order to approve a case.  Over the past 15+ years we have successfully helped clients obtain EB1 green cards in software, engineering, speaking, business, consulting, acting and other fields where the applicants had none to very few citations.  There are many ways to make a strong case without a strong citation record.  For your reference, here are some samples of our approved petitions.  If you’d like our help, please feel free to call us at 305 515 0613 or email us at info@messersmithlaw.com.  

USCIS Appointment and Green Card Interview Rules – NEW

by

New USCIS Interview for Employment Based I485 Applicants

For the past 15 years, USCIS has only required in person interview of employment based I485 applicants in situations where the USCIS adjudicator believed the applicant may have committed fraud, violated their nonimmigrant status or had a criminal record.  On August 28, 2017 that all changed.  USCIS has announced that their new policy is phase in in-person interviews for all employment based applicants.  This includes employer sponsored EB2 and EB3 based applications as well as self sponsored EB1 and NIW based applications.  These interview are expected to begin on October 1, 2017.

Scope of Interview and Possible Interview Questions

To determine what USCIS is looking for in these new interview, we can look to their announcement itself.  In their announcement, USCIS states that

Conducting in-person interviews will provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.

It becomes readily apparent that the purpose of these interviews is to find a reason to deny your application.  Similar to marriage based fraud interviews, USCIS will use their available resources to conduct an investigation of the application prior to their interview to determine whether or not the applicant or the applicant’s employer made an false or misleading statements or submitted any false or misleading documents in support of either the labor certification or I140.  Moreover, in addition to background checks previously performed, USCIS is likely to perform credit checks and internet searches to see if there is any information available that contradicts what was submitted in the filings.

In marriage green card interviews, the adjudicating officer will review the forms filed, the documents submitted, and the question the applicants to determine not only if they meet the minimum requirements but also if their relationship is genuine and bonafide.  Questions about maintenance of nonimmigrant status are unusual in those case but in these new USCIS interviews for employment based applicants, it is likely to be one of the primary focuses.  If you are on an employment based visa, expect to be asked questions regarding your work, your job duties, the job location and all related questions.  USCIS will want to see if you properly maintained your status and if they determine that you did not, your case may be denied.  Furthermore, the likely main focus will be on the job identified in the I140.  Why did the employer sponsor you?  How did you hear about the job?  Do you currently work there?  How about your past experience?  Is it legit?  Are you currently working there?  Who are your coworkers?

After we appear at some of these interviews, we’ll know exactly what to expect but this is a new hurdle for employment based I485 applicants and if your interview does not go well, expect big delays and possible denials.  And if you have a spouse or child who has filed a derivative I485, expect to be grilled over those relationships as well, especially if the marriage is young or either of you have been previously divorced.  Our office has extensive experience with USCIS interviews and we can assist you in this matter.  If you are scheduled for an interview at a local office in Chicago, IL, Milwaukee, WI, St. Louis, MO, Des Moines, IA, or Indianapolis, IN, we can help you.  Contact us here.

 

EB1 Requirements

by

Documentation for EB1 Requirements

The EB1A green card is for aliens of extraordinary ability engaged in the arts, sciences, business, education or athletics. Many scientists, post docs, and PhD students utilize the EB1A category to self sponsor their permanent residency as no job offer or labor certification is required. The legal standard for the EB1A category is codified in INA Section 203(b)(1)(A) and states that how an applicant may qualify for EB1A classification.  The EB1 requirements are:

  1. the alien has 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,

  2. the alien seeks to enter the United States to continue work in the area of extraordinary ability, and

  3. the alien’s entry into the United States will substantially benefit prospectively the United States.

8 CFR Section 204.5(h)(3) states the EB1 requirements for how an applicant can show sustained national or international acclaim:

A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award), or at least three of the following:


(i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;


(ii) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;


(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;


(iv) Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;


(v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;


(vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;


(vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;


(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;


(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or


(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.


8 CFR Section 204.5(h)(5) discusses the absence of a job offer requirement:

No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.

Over the years, there have been a variety of cases that made it into federal court which has allowed the judiciary to provide guidance and rules on how applicants can meet the EB1 requirements. In 1994, a federal district court ruled against USCIS when denied an EB1 petition filed by an NHL player and stated that published material about an alien is sufficient so long as there is “published material about [him] in professional or major trade publications or other major media.” Later in 1995, the court held in Racine v. INS that published articles about an applicant do not need to state that the applicant is “one of the best in his field.” Many other court cases followed since then but the court in Kazarian v USCIS offered the most sweeping review and provided major guidance that was adopted by USCIS.

Kazarian adopted a two part analysis which puts the onus on the applicant to establish that they meet three of the 10 criteria set forth in 8 CFR §204.5(h)(3)(i)-(x). Once this is established, USCIS will perform a “final merits determination” analysis to determine whether or not the applicant truly has “sustained national or international acclaim.”

Many immigration lawyers, myself included, feel the final merits determination to be a requirement contrary to any reasonable reading of the statutory language but multiple courts since Kazarian have upheld this reading of the law and USCIS, itself, has embraced it as well so we’re Kazarian defining the EB1 requirements. Because the final merits analysis is completely subjective and is open to a different interpretation by different service centers and different USCIS officers it is very important to present a structured case tailored to what USCIS wants to see. Our office has handled thousands of immigration cases and we have posted thousands of approval notices on our web site to back up that claim. We know what USCIS wants to see in this final merits determination and we can help you win your case. Send us a copy of your CV or give us a list of your accomplishments and we can help you win your green card through the EB1A category.

Athlete Visa and Athlete Green Card Options

by

For foreign nationals who wish to come to the United States to work or perform as an athlete in sports like football, basketball, hockey, MMA, tennis, golf or in other competitions, there are several different visa and green card options to be found.  Typically, the most difficult part of the process is finding sponsorship but, fortunately for you, I can tell you several ways to get around that issue to perform in the US legally.

Athlete Visa Options

Option 1 – The B1 Visa.  The B1 visa, also known as a business visa, can be used by amateur athletes “competing in an athletic event for which they will receive no payment, other than incidental expenses” and by professional athletes “who receive no salary or payment other than prize money.”  This is clearly not the best option for an athlete who wishes to remain in the US for a longer term as this visa is limited to a six month duration and typically only granted for the exact sporting event period which can be just a couple weeks.  Also, payment is limited to prize money or incidentals.  However, it does not require sponsorship and you do not have to file a petition to USCIS for approval.  The application for a visa can be made at the Embassy and the process is very quick though not always simple to get approved.

Option 2 – The H2B Visa.  The H2B is a seasonal worker visa.  It can be used by athletes to perform in any sport that is seasonal, such as basketball or hockey.  However, for sports that are played year round, this visa type will not be an option.  The H2B visa required a US employer to sponsor the athlete and even more than that, the employer is required test the market for potential employees, run advertisements and promise to pay the “prevailing wage” for the job.  Then the employer must file applications with both the US Department of Labor and USCIS and get approvals from both before a visa application can be made at the Embassy.  Another benefit is that the H2B visa holder can bring his or her spouse or children along with an H4 visa.  The process is slower and cumbersome and you must stay aware of the H2B visa cap which mandates that only 66,000 H2B visas be issued each fiscal year.

Option 3 – The O1 Visa.  The O1 visa is limited to foreign nationals with “extraordinary ability.”  This basically means that this category is reserved for accomplished professional athletes.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  Having a sports agent as a sponsor for your O1 visa is ideal for golf, tennis or other individual sports players that are going to play at multiple different sports events or tournaments.  Unlike the H2B visa, there is no wage requirement and there are no required tests of the labor market.  The employer or agent will file a petition with USCIS and once that is approved, an application for a visa can be made at the Embassy.  A big benefit of this visa type is the athlete can bring a spouse and children along with an O3 visa and you can bring your assistants (multiple) with an O2 visa!

Option 4 – The P1 Visa.  The P1 visa is the only visa type that is specifically designed for athletes.  The athlete does not need to demonstrate extraordinary ability and there is no distinction between amateurs or professionals or individual or groups.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  There is no prevailing wage requirement and no test of the labor market is required.  However, the athlete must be “internationally recognized” and is used to compete at a specific athletic competition.  If you are only competing for prize money, the B1 visa is likely the better option and if you want to remain in the US for a longer period of time then you are likely better off with the H2B visa or O1 visa.

Athlete Green Card Options

Option 1 – PERM Labor Certification + EB3 Green Card.  The PERM labor certification requires a US employer to promise to pay the athlete the prevailing wage and perform a test of the US labor market to see if any minimally qualified US workers are willing and able to take the position, if offered to them.  If no US workers can be located then the green card application can proceed.  The PERM process + the green card process typically takes a couple years if there are no complications or no visa availability issues as listed in the visa bulletin.

Option 2 – EB1 Green Card.  The EB1 requirements mirror the requirements of the O1 visa.  The athlete must be a professional and be significant accomplishments in the sport as to show they are extraordinary.  However, unlike the O1 visa which requires sponsorship by a US employer or agent, the EB1 category has no such requirement.  That means that any foreign athlete can self sponsor and petition for a green card based on their own merits and does not have to rely on anyone else.  When the green card is approved, they are required to continue in their sport but not with any particular employer or agent.  This category is very quick and we have many EB1 cases approved in less than 1 week.

If you would like to explore your athlete visa or athlete green card options, you can contact our office by phone at 305-515-0613, by email at info@messersmithlaw.com or through this contact form.  Our firm has handled thousands of immigration cases and we can evaluate your case to determine the best path for you.

EB1 Extraordinary Ability Petitions for Managers: Project Manager, IT Manager, Marketing Manger, Software Development Manager, and other Businessmen

by

The EB1 extraordinary ability green card allows anyone in the arts, sciences, business, education or athletics to sponsor their own green card.  No job offer or labor certification is required.  The requirements for this category are quite high but not insurmountable.  Our office has handled thousands of immigration cases and have secured many EB1 approvals for our clients.

Many people believe that the EB1 category is limited to scientists or researchers or those who have won Nobel prizes.  This is simply not the case.  We have helped many people in business fields with job titles like Project Manger, IT Manager, Marketing Manger, or Software Development Manager self sponsor through the EB1 category.

In order to qualify for EB1 classification, you must be able to prove you meet three out of the following ten items:

  • 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, as judged by recognized national or international experts;
  • Published material about the alien in professional or major trade publications;
  • Evidence that the alien is a judge of the work of others in the field;
  • Evidence of the alien’s original contributions of major significance to the field;
  • Authorship of scholarly articles;
  • Display of the alien’s work at artistic exhibitions or showcases;
  • Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  • Evidence that the alien commands a high salary in relation to others in the field; or
  • Evidence of commercial success in the performing arts.

None of our clients have sufficient documentation to argue all of these elements and it is not necessary to meet all of them, only three.  We typically have enough documentation to argue 4-5 and as long as we can prove three, that is enough.  Typically managers like IT Managers, Project Managers and other people in the business field have similar types of experience and accomplishments.  Awards are rare and usually company specific and none have any artistic exhibitions or performing art success.  However, most of our clients do judge the work of the peers in the form of performance evaluations, business proposals, or by managing specific projects.  Most of our clients are able to show that projects that they have managed or lead are significant and have made an impact in the field.  Many projects result in economic benefits, job creation, market share increase or other specific benefits.   Managers by definition are leadership positions.  Most of our clients are able to show that their role was leading or critical in their organization.  These are the most common types and if you have made accomplishments in these three areas, then you may have a good EB1 case.

Send us a copy of your CV/resume and we’ll see if we can help you with your own EB1 self sponsored green card.

EB1A and EB1B Concurrent Filings

by

I’m a researcher currently working in Virginia University.  I have numerous publications and hundreds of citations.  I believe that I’m qualified for EB1-EA.  My boss is also agree to sponsor me through EB1-OR. Can I file both EB1-EA and EB1-OR at the same time?

Yes. Many of our clients opt for filing both petitions simultaneously. Often, one petition will be approved earlier than the other. Moreover, each application may be routed to a different adjudicating officer and if one officer incorrectly denies the first application, the other officer may approve the second application.

EB1 Extraordinary Ability and EB1 Outstanding Researcher Concurrent Filing

by

I’m a researcher currently working at Yale.  I have numerous publications and hundreds of citations. I believe that I’m qualified for EB1-EA.  My boss is also agree to sponsor me through EB1-OR. Can I file both EB1-EA and EB1-OR at the same time?

Yes, many of our clients who qualify under two or more categories, choose to make multiple filings. There is no limit on the number of I-140 applications you can make. However, there are important difference in EB1A and EB1B. You may be able to establish one but not the other. Please send us a copy of your CV and we can help you make the correct choice.