1. Three Ideal Options for a Green Card Application
Some alien applicants can be exempted from the Labor Certification application requirement, by their extraordinary ability, outstanding research, or their job positions as multi-international executives or managers. Foreign workers with extraordinary ability, outstanding professors and researchers, and transferring executives and managers all receive high priority for U.S. Green Cards. Priority workers fall into the first preference category of U.S. employment-based visas. A visa in this context actually means a Green Card, or lawful permanent residence. Technically speaking, an immigrant visa is what the applicant needs in order to enter the U.S. and become a Green Card holder.
Aliens of Extraordinary Ability may be eligible for a First Employment-Based Preference (EB-1A or EB1-EA). A Green Card applicant with extraordinary ability in the arts, sciences, education, business or athletics is eligible for treatment as a priority worker in the EB1 immigration category.
For alien applicants with an advanced degree - masters or above, there are three ideal options to apply for a U.S. Green Card. These options are in different immigration classifications in Employment-Based (EB) immigration, which include:
- EB-1A: Aliens with Extraordinary Ability in the Sciences, Arts, Education, Business or Athletics (or EB1-EA);
- EB-2 NIW: Members of Professions Holding Advanced Degrees Applying for a Waiver of Labor Certification in National Interest (or NIW).
Obtaining a U.S. Green Card for a priority worker is typically easier than doing so in some of the other employment-based visa categories. The reason is that the employer does not need to start out by attempting to recruit U.S. workers for the job and then seeking Labor Certification (confirmation that no such workers are available) on the employee. The Labor Certification process tends to take many months and involve staggering complexity. In fact, within the subcategories for workers of Extraordinary Ability and National Interest Waiver, the foreign national does not even need a job offer from a U.S. employer at all.
Some people with advanced degree do not know how to apply for Green Card in above three preferred categories, but instead, these people apply for a Labor Certification. However, choosing Labor Certification is not the best strategy and quicker way for people who may qualify for one of the above three ideal immigration classifications.
An alien should determine the most appropriate type and fast route to obtain a U.S. Green Card. By using the Form I-140 of USCIS (United States Citizenship and Immigration Services), each type of above EB Form I-140 application requires different kind of evidence. Some aliens may qualify for more than one immigrant categories of EB1 or NIW.
2. Workers of Extraordinary Ability EB-1 Category, for Alien of Extraordinary Ability
For many foreign nationals, the EB-1A for Aliens with Extraordinary Ability is an attractive immigration category, because it also allows self-petition without U.S. employer's sponsorship and even a job offer. No U.S. employer's sponsorship is required for EB1 Extraordinary Ability petition, thus an alien immigrant can self-petition the EB-1A with the USCIS.
Answer three questions below to see if you could qualify for an EB-1 Extraordinary Ability immigrant visa:
1) Do you have extraordinary ability in business, science, arts, education or athletics?
2) Do you have sustained national or international acclaim in your field?
3) Are you coming to the United States to work in your area of extraordinary ability?
If you answered Yes to all of the questions above, you may meet the requirements for an EB-1 Extraordinary Ability Visa. A worker with extraordinary ability in the sciences, arts, education, business, or athletics, may qualify for a Green Card as a priority worker. The achievements must have been publicly recognized, and resulted in a period of sustained national or international acclaim. This often involves showing that the foreign national is a widely acknowledged leader in the particular artistic, educational, business, or athletic field.
No job offer is needed in this subcategory so long as the foreign national will continue working in the field of expertise after arriving in the United States. If, however, the worker has received a job offer from a U.S. employer, that employer can help with the EB-1 application by filing the required initial application with U.S. Citizenship and Immigration Services (USCIS) on Form I-140.
An Form I-140 application filed for an alien immigrant with extraordinary ability must demonstrate that the alien applicant has a level of expertise that the alien has risen to the top of the field. Evidence must be submitted to support an Form I-140 application for an alien of extraordinary ability. An EB1 Extraordinary Ability application must be accompanied by initial evidence:
a) the alien applicant has sustained national or international acclaim; and
b) the alien applicant’s achievements have been recognized in the field of expertise.
Many new immigrants may wonder whether they could qualify for the EB-1A immigration visa classification. The common misunderstanding could be that the EB1 Extraordinary Ability immigrant visa application is very hard to get approval. Therefore, many aliens with extraordinary ability may not normally apply for Green Card in this category.
Due to the immigrant visa number retrogression for some countries, the alien applicants from these countries need to wait for years to get Green Card application approval in EB-2 and EB-3 categories. Many new immigrants are looking for other options. The EB1 Extraordinary Ability (EB-1A, or EB1-EA) category is such an option for those aliens with extraordinary ability who could qualify. Because the EB-1A category is in the First Preference, and the immigrant visas are immediately available. Normally, people may expect aliens with extraordinary ability to have Ph.D. degrees, but the USCIS regulations do not require a doctorate degree for the EB-1A beneficiary.
3. The Green Card Application in the EB1-Extraordinary Ability Category
Certain aliens are exempted from the Labor Certification application process by virtue of their extraordinary ability, outstanding research, positions as international managers and executives, or their work in U.S. national interest. An immigrant application filed on behalf of an alien with extraordinary ability must demonstrate that the alien possesses a level of expertise indicating that he or she has risen to the top of the field of endeavor.
If you have 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, then you will qualify as an alien of extraordinary ability. If you are a member of the "small percentage who have risen to the very top of the field of endeavor", then you can apply under this category.
A Green Card applicant with extraordinary ability in the sciences, arts, education, business, or athletics is eligible for treatment as a priority worker in the EB1 category. Individuals who qualify for this category as persons with extraordinary ability can waive both the Labor Certification and offer of employment requirements. The extraordinary ability category does not require a job offer or a U.S. employer's sponsorship. Therefore, no labor certification is required. Consequently, aliens can apply for themselves without the assistance of an employer. However, it will be important for the alien to establish that he or she will continue to work in the area of his/her specialty in United States.
The employment-based immigration is one of the most popular ways to obtain U.S. Permanent Residency. The Permanent Residency process is a two-application process. One application is called Form I-140 application for an immigrant visa, which can be filed by a U.S. employer or by an alien in some immigration categories, such as EB1- Extraordinary Ability. The other application is filed by an alien and is called Form I-485 application, to change his or her legal status in the United States to receive the actual Green Card, as a U.S. permanent resident.
Evidence must be submitted to support a Form I-140 petition for Aliens with Extraordinary Ability. Unlike the requirement for EB1 Outstanding Professor or Researcher Petition, in which alien applicant must demonstrate that the alien is recognized internationally as outstanding in the academic field, The EB1 Extraordinary Ability applicant must have garnered "sustained national or international acclaim in the field of endeavor".
The following are the USCIS requirements for EB1 Extraordinary Ability application:
"The EB1 Extraordinary Ability classification applies to individuals with extraordinary ability in the sciences, arts, education, business, or athletics. The individual must demonstrate that they have sustained national or international acclaim, and that their achievements have been recognized in the field of expertise, indicating that they are one of that small percent who has risen to the top of their field of endeavor. The individual must plan to continue to work in their area of extraordinary ability and must substantially benefit the United States."
4. The Advantages of Applying for EB1-Extraordinary Ability (EB-1A or EB1-EA)
The EB1 Extraordinary Ability (EB-1A) category is reserved for those at the top of their field who have a record of sustained national or international acclaim. For a person who may qualify for EB-1A, applying for this immigration category is a much better choice and quicker way to obtain U.S. Green Card than the Labor Certification. The EB-1A application does not require Labor Certification. Furthermore, an applicant can do self-application for the EB-1A application, which means that the applicant does not need a specific sponsorship from U.S. employer, or even a job offer. The only requirement is that the person must stay in the same field during the application process.
For many foreign nationals, the EB1 Extraordinary Ability is an attractive immigration category, because the immigrant visas are current for everyone in the EB1 categories, and it also allows self petition without U.S. employer's sponsorship and even a job offer. Generally, the major advantages of EB1 Extraordinary Ability application include:
1) No labor certification is required for Form I-140 filing under EB1 Aliens with Extraordinary Ability;
2) The immigrant visas are current for EB1, so it is much faster to obtain a U.S. Green Card in this category than other categories under EB2 and EB3;
3) No U.S. employer sponsorship is required, thus an alien immigrant can self-petition the EB-1A with the USCIS.
4) A job offer from the U.S. employer is NOT required for EB1 Aliens with Extraordinary Ability.
Without the requirement of Labor Certification or a sponsorship of U.S. employer, the EB-1A applicants enjoy the following three additional advantages:
1) The Labor Certification is a long-time process. Therefore, bypassing the Labor Certification process is really an advantage of EB-1A, and it makes EB-1A much faster than other immigration categories requiring the Labor Certification.
2) Another advantage of EB-1A application is that some employers are reluctant to sponsor a foreign employee Green Card application, this is especially true during the U.S. economic descending time. In such a situation, an employer may not want to begin a Labor Certification process, and an alien employee cannot apply for a Labor Certification by himself/herself without the sonsorship from employer.
3) The EB1-Extraordinary Ability immigration category is similar to EB1-Outstanding Researcher or Professor, but the EB-1A does not require an employment position to be permanent or on tenure track. The alien applicants without a permanent job position or a permanent job offer, such as F1 students, H-1B post-doctor researchers, H-1B and L1 researchers or consultants, J1 visiting scholars, can apply for Green Card in the EB-1A immigration category by themselves as self-petitioners, without an employer's sponsorship.
Without the requirement of Labor Certification, an employer's sponsorship, or even a job offer, an EB-1A applicant also enjoys much greater freedom in an employment. An alien applicant does not need to meet some very strict conditions set otherwise in the Labor Certification, such as:
- leave current employer;
- lose job;
- change job description or title;
- change job location;
- employer out of business;
- employer merger with other company.
In other words, as an applicant in the EB-1A application, you do not need to worry about a failure to satisfy the conditions set by the Labor Certification and the jeopardy of your Green Card application process. You do not have to be stuck with your current employer during the whole Green Card application process for several years before change to another employer. Your Green Card application process and situation is under your control, not your employer's control.
5. File a U.S. Green Card Application By Yourself
Most of the employment-based immigration categories require a U.S. employer to sponsor the foreign workers for their immigration application (U.S. Green Card Application), there are actually a few immigration categories that allow for self-petition if certain requirements can be met by the alien applicants.
In two immigrant classifications, the foreign applicants are not required to have a U.S. job offer, and may self-petition for U.S. Green Card - the foreign applicants do not need an U.S. employer to sponsor them. These two categories are:
1) Individuals of extraordinary ability in the sciences, arts, education, business or athletics, (E11 or EB-1A)
2) Individuals who were granted a National Interest Waiver (E21, or EB2 NIW)
Individuals of extraordinary ability are considered to be the best in their field, and the EB1 Extraordinary Ability is an eligibility category that applies to very few individuals. Examples of who may be considered an E11 or EB-1A immigrant include those who have achieved great successes in their field.
The employment-based first preference (EB1) immigration category has three subcategories, i.e, EB1 Extraordinary Ability (EB-1A, or EB1-EA), EB1 Outstanding Professor or Researcher (EB-1B, or EB1-OR), and EB1 Multinational Executive or Manager (EB-1C, or EB1c). Only one of these 3 subcategories, EB1 Extraordinary Ability, allows for self-petition. This immigration category is available for alien applicants with extraordinary ability in business, science, art, education, or athletics. The alien applicants who may qualify for the EB1 Extraordinary Ability application are generally those who are recognized as being at the top of their respective fields, and who intend to continue to work in that field in U.S.
Another immigration category allowing for self-petition is the EB2 National Interest Waiver (EB2 NIW, or NIW). This immigration category falls within the employment-based, second preference (EB2) immigration category, which is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.
The EB2 immigration category generally requires a job offer from an U.S. employer, and it also requires a PERM labor certification approved by the U.S. Department of Labor (DOL). The labor certification process is designed to protect U.S. workers. However, U.S. immigration law allows for a waiver of the PERM labor certification requirement in some cases, in which the alien applicant's contributions for United States are at such a level that the U.S. nation's interests can be better served by not having the alien applicants undergo the PERM labor certification process.
If you are living outside the United States, you can become a U.S. permanent resident by first submit Form I-140 application, then go through consular processing. The consular processing is when U.S. Citizenship and Immigration Services (USCIS) works with the U.S. Department of State to issue an immigrant visa on an approved Form I-140 (Immigrant Petition for Alien Worker).
6. The Self-Petition and "Continue to Work in the Area of Expertise in U.S."
An Form I-140 application filed for an alien of extraordinary ability does not need to be supported by a job offer or be sponsored by an U.S. employer, and the alien applicant can self-petition for the EB-1A application. For a self-petitioned EB-1A application, the alien applicant must demonstrate that he or she will continue to work in the field of extraordinary ability in the United States, and the alien applicant's work should benefit the United States substantially.
There are no standard criteria for what will substantially benefit the United States. In the EB-1A applications, the petitioner must show that the alien will continue to work in the area of expertise in the United States. If USCIS adjudicators are not satisfied that the alien applicant has satisfied the requirements, a Request For Evidence (RFE) notice may be issued by USCIS.
Example for Athletes and Coaches: There are cases where it is difficult to determine if an applicant's intended employment is in the area of extraordinary ability. Some of the cases are those where the alien applicant’s sustained national or international acclaim is based on the abilities as an athlete, but the alien’s intent is to come to U.S. to be employed as an athletic coach or manager.
We all know that competitive athletics and coaching have different sets of skills, and therefore are not in the same area of expertise. But on the other hand, many extraordinary athletes have become extraordinary coaches later.
- If an alien athlete has achieved national or international acclaim, and has sustained that acclaim in coaching or management field at a national level, USCIS may consider the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability, and then may conclude that coaching is in the beneficiary’s area of expertise.
- If a beneficiary has an extended period of time to establish the reputation as a coach, beyond the years as an athlete and with the specific facts, USCIS may consider the evidence of the alien applicant’s acclaim as a coach or a manager.
7. Obtain Recommendation Letter or Reference Letters for Your EB1 Alien with Extraordinary Ability Petition
Strong recommendation letter or reference letters are key to a successful EB1 Alien with Extraordinary Ability petition. An alien applicant should obtain strong letters from both the alien applicant's “inner circle“ and“ outer circle“ of peers. The inner circle includes those he or she has directly worked with either in academia or in business. While these letters are often the most glowing, they are also the most suspect since they are possibly biased.
The following is some guidelines for whom you should turn to for recommendation letters
1) Supporting letters from experts or authorities have more weight: Generally, individuals recognized as authorities or experts in the field are given greater weight. A statement should be included in the support letter that establishes the qualifications of these individuals to judge the alien's work.
2) Supporting letters from closely-related or undistinguished persons have little weight: Support letters from other employees of the same petitioner or organization that is currently employing the alien applicant or seeks to employ the alien applicant have been given little or no weight on the basis that they lack objectivity. Similarly, testimonial letters from undistinguished colleagues or former college instructors have been subject to greater scrutiny than letters submitted by high-level officials of recognized major organizations.
3) A recommendation letter from an objective third party is viewed in a more positive light: Moreover, objectivity is one of the factors considered by the USCIS. Letters of support from other employees of the same petitioner or organization that is currently employing the alien applicant or seeks to employ the alien applicant may be rejected on the basis that they lack objectivity. However, if your professor or employer has substantial knowledge about your accomplishments and can provide strong reference, they may be great candidate of recommendation letters.
8. The "Two-Part Approach" for EB1-Extraordinary Ability Petition
The USCIS' Two-Part Evaluation approach adjudication method applies to EB1 Extraordinary Ability petition. The evidence listed in the EB-1A regulations serve only as guidelines for the petitioner. Eventually, the submitted evidence should establish that the alien beneficiary is nationally and internationally recognized as extraordinary, and have received "sustained national or international acclaim in the field of endeavor".
USCIS has issued a Policy Memorandum for "Two-Part Approach" Form I-140 Petitions Evaluation. This Policy Memorandum provides guidance regarding the analysis that Immigration Service Officers must use in adjudicating Form I-140, Immigrant Petition for Alien Worker, filed for: EB1 - Extraordinary Ability petitions, EB1 - Outstanding Professor or Researcher petitions, and Aliens of Exceptional Ability, including EB2 NIW petitions.
The Two-Part analysis is used to determine whether the beneficiary is an individual of extraordinary ability:
1) First, USCIS determines whether the petitioner has submitted evidence to show that the beneficiary has received a one-time achievement (a major international recognized award); or the beneficiary qualifies under at least three of the ten criteria required for this classification.
2) If the petitioner establishes that the beneficiary has received a one time achievement (a major internationally recognized award), or meets at least three of the ten criteria, we then determine whether the petitioner has submitted evidence demonstrating that the beneficiary
- has sustained national or international acclaim, and
- has achievement that have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who has risen to the very top of the field of endeavor.
In determine whether the beneficiary has enjoyed “sustained” national or international acclaim, such acclaim must be maintained. A beneficiary may have achieved extraordinary ability in the past, but then failed to maintain a comparable level of acclaim thereafter.
Once USCIS determines that the petitioner has provided satisfactory evidence for the requisite number of prongs, the second phase of review requires the adjudicator to weigh the evidence against the required high level of expertise for the visa category. It is in the second phase of the review where the evidence can be evaluated to see if, cumulatively, it proves by a preponderance of the evidence that the applicant or beneficiary is at the very top of his or her field.
Simply presenting evidence which relates to three of the listed ten EB-1A criteria does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB-1A classification, the additional evidence may be requested (Request For Evidence, or RFE)
9. The Differences Between EB-1A and EB-1B Petitions
For many foreign nationals, both EB1 Extraordinary Ability and EB1 Outstanding Researcher or Professor are attractive immigration categories, because the immigrant visas are current for people from every country in the EB1 categories, and the EB-1A also allows self-petition without U.S. employer's sponsorship and even job offer. Also, the EB1 Extraordinary Ability category has the higher standard which requires the alien applicants to "rise to the very top of the field.", and EB1 Outstanding Researcher or Professor requires a "permanent" research or teaching job offer from a U.S. employer.
The EB1 Aliens with Extraordinary Ability petition does not require a job offer, but the EB1 Outstanding Professors and Researchers Petition requires a job offer. Thus, the EB1 Outstanding Professors and Researchers petition cannot be self-filed without an U.S. employer as a sponsor. Therefore, the EB1 Outstanding Professors and Researchers petitions must be accompanied by a job offer from a U.S. employer.
To file an EB-1A petition for alien with extraordinary ability, an alien applicant needs to prove that he or she has “extraordinary ability” in a field, which normally requires greater achievement and ability in a field than the the "outstanding ability" required for an EB-1B petition. The regulation requirements for an EB-1B petition is somewhat lower than that for an EB-1A petition.
Also, for EB1 Extraordinary Ability applicants, they need to show a major internationally recognized award, or documentation from at least three of ten criteria. But for EB1 Outstanding Professors and Researchers, the alien applicants are required to show that they have received international recognition as outstanding in an academic areas, by meeting at least two of the six criteria.
In summary, the major differences between the EB1 Alien with Extraordinary Ability category or EB1 Outstanding Researcher or Professor category include:
1) The "EB1 Extraordinary Ability" category generally requires higher achievement and ability;
2) The "EB1 Extraordinary Ability'' category can apply to many different fields in the sciences, arts, education, business, or athletics, while the "EB1 Outstanding Researcher or Professor" category generally applies to scientific or scholarly fields;
3) The "EB1 Extraordinary Ability" category requires no specific employment or job offer, while the "EB1 Outstanding Researcher or Professor" category requires a job offer for a permanent research position or a tenured/tenure track teaching position;
4) One can self-petition in the "EB1 Extraordinary Ability" category without a U.S. employer's sponsorship, while the "Eb1 Outstanding Researcher or Professor" category requires a sponsorship from the alien's employer or prospective employer;
5) The "EB1 Outstanding Researcher or Professor" category requires at least three years experience in the field, while the "EB1 Extraordinary Ability" category has no specified minimum experience requirement for any particular field.
10. The Petition of EB-1A and EB2 National Interest Waiver (EB2 NIW) at the Same Time
The EB2 National Interest Waiver (NIW) and all EB1 immigrant categories (EB1 Extraordinary Ability, EB1 Outstanding Researcher and Professor, and EB1 Multinational Executive or Manager) do not not require Labor Certification. For the EB2 Exceptional Ability category (not EB2 NIW), the U.S. employer can submit the Form I-140 petition only after obtaining the Labor Certification from U.S. Department of Labor.
The EB1 Extraordinary Ability and EB2 NIW immigrant categories can be self-petitioned, so the foreign aliens do not even need an job offer of employment and the U.S. employer's sponsorship. But for EB2 Outstanding Researcher and Professor petition, an applicant needs a job offer and U.S. employer's sponsorship.
The scope for EB2 NIW petition does not have to be very narrow. An alien applicant can submit both EB1 NIW and EB-1A petitions at the some time to increase the approval chance, if the alien applicant can meet the qualification requirements. If an alien applicant is from a visa retrogressed countries, such as India or China, then EB1 category is more desirable route than NIW, becuse the waiting time for filing Form I-485 form is much shorter.
Both EB1 Aliens with Extraordinary Ability petition and EB2 National Interest Waiver petition do not require a job offer from a U.S. employer. Thus, both petitions can be self-filed without an U.S. employer as a sponsor. The requirements for EB1 Extraordinary Ability and EB2 National Interest Waiver petition (NIW) are different. Therefore, the application documents and their preparation are significantly different between these two immigrant visa categories.
To file an EB-1A petition for alien with extraordinary ability, an alien applicant needs to prove that he or she has “extraordinary ability” in a field, which normally requires greater achievement and ability in a field than the the "exceptional ability" required for an EB2 NIW petition. The regulation requirements for a EB2 NIW petition is lower than that for an EB-1A petition. Also, for EB1 Extraordinary Ability applicants, the applicants need to show a major internationally recognized award, or documentation from at least three of ten criteria. But for EB2 National Interest Waiver petition, the alien applicants are required to show that they are in an area of substantial intrinsic merit, and the applicant's work should benefit the U.S. national interest.
There is no rules in the law to prohibits multiple filings of immigrant visa application. It is possible to file an EB-1A and a NIW petition at the same time, or file an EB-1A and an EB-1B petition at the same time. Many aliens file two Form I-140 petitions concurrently in EB-1A and NIW (or EB-1A and EB-1B) to increase their approval chances.
To file EB1-A and NIW concurrently, you can file them by yourself, or you can ask your employer as your sponsor, to file a separate Form I-140 petition for EB-1A and NIW, with the required application fee and supporting documents for each immigrant visa category. Also, the applicant should be careful not to check multiple categories on one I-140 Form.
11. Not Qualify for EB1 Alien of Extraordinary Ability? EB1 Outstanding Researcher/Professor or EB2 National Interest Waiver May Be Your Options
If you believe that you may not qualify for EB1 Alien of Extraordinary Ability (EB-1A), but you still want to file your immigrant visa application under the EB1 or EB2, you may consider the EB1 Outstanding Researcher or Professor (EB-1B), or consider the EB2 National Interest Waiver (NIW).
For many foreign nationals, the EB1 Extraordinary Ability is an attractive immigration category, because the immigrant visas are current for everyone in the EB1 categories, and it also allows self petition without U.S. employer's sponsorship and even job offer. However, the EB1 Extraordinary Ability category has the higher standard which requires the alien applicants to "rise to the very top of the field."
For many alien applicants, and also for people whose academic achievements are not quite sufficient for EB-1A applications, the EB1 Outstanding Professor or Researcher immigration category and EB2 National Interest Waiver category are good choices. The regulation standards for EB-1B and NIW applications are somewhat lower than that of EB-1A, and it only requires the "internationally recognized as outstanding" for EB-1B and "exceptional ability" for NIW, rather than "at the very top of the field of endeavor" as required by EB-1A applications. The overall approval rate of EB-1B applications and NIW applications are higher than that of EB-1A applications.
12. The EB1 Extraordinary Ability Application for O-1 Visa Holders
In some cases, an EB-1A petition may be filed on behalf of an alien who was previously granted the O-1 visa, alien of extraordinary ability nonimmigrant visa. Though the prior approval of an O-1 visa petition on behalf of the alien may be a relevant consideration in adjudicating the EB-1A petition, USCIS is not bound by the fact that the alien was previously accorded the O-1 visa if the facts do not support approval of the E11 petition; eligibility as an O-1 visa does not automatically establish eligibility under the EB-1A criteria for extraordinary ability.
Each petition is separate and independent, and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions. Moreover, the O-1 nonimmigrant visa includes different standards and criteria for aliens in the arts, athletics, and the motion picture industry. In such cases, there would be nothing inconsistent about finding that an alien in the arts has “distinction” according to the O-1 nonimmigrant visa criteria, but not “national or international acclaim” according to the EB-1A immigrant criteria.
USCIS believe each petition must be adjudicated on its own merits. Previously, some courts have asked USCIS to provide an explanation as to why the alien is not eligible for EB-1A employment-based immigrant visa, if the alien had previously been approved in an O-1 nonimmigrant visa. Therefore, the alien applicant need to meet its burden to establish eligibility for approval of the EB-1A I-140 petition.
Many people who qualify for temporary O-1 visas as persons of extraordinary ability may not automatically qualify for the U.S. Permanent Resident in the EB1-Extraordinary Ability (EB-1A) Green Card category, even though the standards are close. It is therefore important to prepare an I-140 petition for a person of extraordinary ability according to the statutory and regulatory guidelines in order to avoid a Request for Evidence:
1) Ensure that all forms are completely filled out;
2) Clearly document in a letter from the petitioner, or from the alien if it is a self petition, how the alien applicant is qualified for this eminent category - EB1-Extraordinary Ability;
3) Ensure that the alien applicant meets at least three of the required criteria. Although meeting three of the ten criteria of EB-1A would not guarantee that the alien will qualify as an individual of extraordinary ability in the arts, sciences, education, business or athletics, if the alien applicant can not satisfy at least three of the EB-1A criteria, it may be wise to consider another green card application category.
13. The EB1 Extraordinary Ability Application for J-1 Visa Holders Subject to 2-Year Home Country Service Requirement
As a J1 visa holder, you can I file the EB1 Extraordinary Ability (EB-1A) petition now, and then get the J1 waiver later. Since you are subject to the 2 year home country service requirement, you need to receive the J1 waiver before you file Form I-485 to get your Green Card to become U.S. permanent resident.
Before filing the Form I-140 based on the EB1 Extraordinary Ability, you do not have to get the J1 waiver approval. Your J1 visa 2 year home country service requirement will prevent you from adjustment status with the USCIS Form I-485 in the United States, but it will not prevent you from filing the EB-1A petition. After you receive an I-140 approval from USCIS before you get the a J-1 waiver, you should wait for the J-1 waiver approval to submit the I-485 application for adjustment of status.
To help you get your J-1 waiver easily and quickly, we provide a high quality and case-proven Complete Do-It-Yourself Package for J-1 Waiver Application, based on our extensive and practical experience.
As added value in the Complete Do-It-Yourself Package for J-1 Waiver Application, we provide comprehensive instructions on J-1 waiver application requirements and processing, and we also let you know the required application documents, evidence, procedures, samples of recommendation letter and J-1 program sponsor letter, samples of required forms, and detailed explanation of the J-1 waiver application related forms and issues for different J-1 waiver options.
14. Apply for Adjustment of Status Using Form I-485 after EB-1A based Form I-140 Approval
USCIS application Form I-485, application for adjustment of status, is the form you are required to file to get your Green Card after your application for immigration based on EB-1A is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a Complete Do-It-Yourself Package for Form I-485 Application.
An immigrant visa's "priority date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for EB-1A application is current. Therefore, you can file EB-1A based Form I-140 application with Form I-485 application concurrently.
With the change of immigration regulation, rules on adjustment of status become more restricted. You must provide visa records to establish your and your family member's continuous lawful status since you or them entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.
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