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When applying to become a permanent resident in the United States via employment-based immigration, applicants are sorted into five distinct preference categories. The EB-1 preference classification constitutes the group of highest preference employment-based visas reserved for immigrants who are extraordinarily accomplished in their respective fields of business, sciences, education, arts or sports.
Qualifying for the EB-1 visa program provides a significant advantage over others who are immigrating from one’s same country for employment purposes. Despite existing restrictions that may cause visa wait times of over a decade for certain applicants in other preference classifications, the EB-1 visa category is usually ‘current,’ meaning that visas are available to applicants soon after their immigration petition is approved.
Another notable advantage of the EB-1 visa is that the immigrant visa petition may be filed and the visa obtained without requiring the additional time consuming and often uncertain Labor Certification requirement.
The EB-1 preference classification has three distinct categories: EB-1A for aliens of extraordinary ability; EB-1B for outstanding researchers and professors in academia; and EB-1C for managers and executives transferring from a foreign company to work for an affiliate in the United States. This article will focus on EB-1B visa eligibility, requirements and application process available to employers who wish to bring foreign professors and researchers to the United States for a permanent position. ( 8 CFR § 204.5)
The EB-1B immigrant visa is intended for foreign nationals seeking permanent residence in the United States who qualify as distinguished professors and/or researchers. To receive this visa classification, foreign nationals cannot merely be a professor or researcher without distinction, but they must be able to demonstrate they are outstanding in their respective field and why their permanent residence in the United States would make them an asset to the country. Qualified applicants should be recognized not only in their own academic communities, but typically should be so outstanding in their respective fields that they have been recognized on an international level.
Furthermore, to qualify for the EB-1B visa, the foreign national must have a minimum of three years teaching or conducting research in their respective area. Teaching or research completed during the course of a graduate degree may be counted towards this minimum, as long as the foreign national had full responsibility over the class they taught or their research was considered outstanding in their academic field.
If a professor or researcher cannot demonstrate this high level of excellence necessary for the EB-1 visa, they still may apply for permanent residence in the U.S. under the EB-2 visa classification, which includes professionals with advanced degrees. The EB-2 visa, just like the EB-1 visa, typically remains current and applicants will receive a visa shortly after their immigrant visa petition has been approved.
Foreign nationals who have previously qualified for the O-1 visa should not interpret this as guaranteed qualification for the EB-B1 visa.
The EB-1B visa is intended for distinguished professors and researchers who intend to continue their academic work once they have immigrated to the United States. Applicants should be seeking roles that will place them on tenure or on a tenure track teaching position at a higher education institution, or a comparable position of this sort.
If they decide to not seek a tenured teaching position, applicants may also seek a position to conduct research on behalf of a private employer instead. Applicants should note that only roles that sponsor original research will qualify for the EB-1B visa. The USCIS does not consider research roles in engineering or product design to qualify, as they interpret this activity as the “technological application of existing research.” Government agencies outside of higher education institutions do not qualify as private employers.
In their application for the EB-1B visa, foreign nationals must be able to demonstrate their excellence through providing evidence for at least two of the following:
Furthermore, applicants must demonstrate that they have three or more years of experience teaching or conducting research in their field.
Employers are not required to undertake the labor certification application process for foreign nationals who qualify for the EB-1B visa. They are, however, required to sponsor the foreign national and file the Form I-140 on their behalf.
For employers to sponsor an EB-1B visa, the role they are offering must be a permanent and full-time position. If the role is a tenure or a tenure-track position, then the employer will not be required to prove permanency. If the employer intends to hire and retain the foreign national, however, with year-to-year “at will” contracts, they will have to provide evidence that this position will indeed be permanent. “Permanent employment” by no means suggests that employment will continue for an infinite duration, but rather that there is a continuous business need to be fulfilled by this role and that the beneficiary will not merely be completing a short-term assignment. One way for employers in this situation to demonstrate intention of permanency is to provide evidence of prior renewals for employees with at-will employment contracts in similar roles.
Furthermore, the employer must demonstrate that they employ at least 3 full-time researchers and have documented research accomplishments.
At the time of this publication, there is a limit of 140,000 available immigrant visas per fiscal year, regardless of whether conferred via immigrant visa processing or adjustment of status (AILA.2.1). Spouses and children of foreign nationals who seek immigrant visas in conjunction with the primary applicant (otherwise known as “derivative applicants”) equally count towards this number (AILA.2.1). The Department of State further stipulates that the number of immigrant visas approved in any quarter of the fiscal year may not exceed 27% of the annual quota, or maximum 37,800 immigrant visas conferred per quarter (AILA.2.2).
Applicants are also subject to a per-country limitation as well, where only seven percent of all immigrant visas, a maximum of 9,800 per year, may go to applicants from any given country(AILA.2.3). It should be noted that this is not the number of visas any given country is entitled to, but rather the absolute maximum their applicants may receive in any given year (AILA.2.4). Furthermore, applicants for immigrant visas are “charged” to the country in which they were born, not the country in which they hold citizenship, if different (AILA.3.6). The Department of State maintains that the current practice of per-country limitation is nondiscriminatory, but from an objective standpoint, applicants born in China, India, Mexico, and the Philippines face significantly longer wait times than applicants from other countries (AILA.3.3).
In addition to the worldwide quota and per-country limitation, the United States utilizes a ranked preference system for employment-based visas, with each receiving a set percentage of immigrant visas. The preference system exists as follows:
In a given quarter, if immigrant visas from one or more categories are underutilized, unused numbers can be transferred down from (E-1) to (E-2) or from (E-2) to (E-3), or transferred up from (E-4) and (E-5) to (E-1) and subsequently down to (E-2) and (E-3) (AILA.4.3). As a result, higher demand in the lower preference categories ultimately affects the number of allocated visas in higher categories (AILA.4.3).
In determining the order of petition-approved applicants to receive an immigrant visa, a system of “priority dates” is used to effectively place an applicant in line (AILA.6.3). The foreign national’s priority date is the same as the filing receipt date of their immigrant visa petition, and it determines their place in the queue relative to other applicants charged to the same country and in the same preference level (AILA.6.4). The earlier their priority date, the sooner their priority date will be “current”, at which point the foreign national can begin the next steps for immigrant visa processing(AILA.6.4).
A category is regarded to be “current” when the availability of immigrant visas exceeds the present demand, and thus there is no waiting period (AILA.6.5). For example: Say there are 20,000 (EB-2) applicants worldwide when there are 40,040 (EB-2) immigrant visas available. Typically, the (EB-1), (EB-2), and (EB-3) preference levels remain current, except for individuals charged to China and India (AILA.7.5). When a country is oversubscribed (i.e. that the number of immigrant visa applicants exceeds the per-country limitation), a cut-off date is established and foreign nationals are placed on a visa waiting list based on their priority date (AILA.7.3).
The Department of State (DOS) publishes two charts as part of the Visa Bulletin on the DOS website: Dates for Filing chart and Final Action Dates chart. The charts are up-to-date guides on which priority dates are current; foreign nationals for immigrant visas with priority dates that land before the date listed in the chart are considered current. If the foreign national priority date is current based on Dates for Filing, these applicants should begin to prepare for immigrant visa processing as instructed by the NVC (AILA.8.4). But the immigrant visas can only be granted when the foreign national’s priority date is current under the Final Action Dates chart.
Before the foreign national begins to prepare their immigrant visa petition, they should reflect on their past experiences and determine how they will leverage their accomplishments in the application.
As outlined above, the foreign national must qualify for two out of the seven mentioned criteria.
Applicants should be mindful that the most successful applications do not just highlight what they see as the most impressive aspect of their background, but what provides the USCIS with the most compelling reason that this foreign national will become an asset to the United States if they are granted permanent resident status.
Furthermore, the USCIS evaluates the application by first counting the number of met criteria as presented, and then evaluating the quality of evidence provided for each criteria.
Therefore, the foreign national should not just rely on a single outstanding qualification in one criterion but rather be ready to demonstrate excellence across the board in at least two criteria.
The EB-1B immigrant visa, as previously mentioned, requires that foreign nationals be able to demonstrate a heightened level of excellence in their respective fields. In gathering evidence for the immigrant visa petition, foreign nationals should take care to not only provide sufficient evidence to communicate this heightened level of excellence, but be able to put this evidence in context for the USCIS officials evaluating their file.
For example, the applicant should assume USCIS officials will not be familiar with the significance of a publication or association that is prominent in the home country of the foreign national but is not internationally acclaimed. Additionally, foreign nationals should not assume that USCIS officials will understand the magnitude of the significance of the applicant’s contributions to their field. Applicants should take care to explain why exactly their contributions / associations / publications / etc. are significant, not just outline the contributions they have made.
Applicants also should not assume that USCIS will take attestations of excellence from applicants themselves at face value, so foreign nationals should not merely rely on descriptions of achievements and their relevance as sufficient evidence. Supporting documentation depending on the criteria should always be provided.
It is recognized that researchers frequently make original contributions to their fields, as that is in the nature of their role. Original contributions from scientific discoveries to the creation of software packages to the development of cutting-edge economic theories, among other contributions, can all qualify for this criterion. It can even be argued that a particular publication qualifies as an original contribution, as journals strive to publish only original content. The emphasis on this criterion, however, is not on original contributions, but on whether they hold major significance.
In their application, the foreign national must not only explain their contribution in layman’s terms, but be able to adequately document in what way their contribution can be considered a major significance. Applicants should pay special attention to this, as this subjective requirement is frequently used by the USCIS to challenge cases, so applicants should aim to prove that their contributions are significant beyond a reasonable doubt, if possible.
Furthermore, foreign nationals should note that satisfaction of this criterion requires multiple original contributions — a single original and significant contribution will not fulfill this criterion.
To properly submit evidence for fulfillment of this criterion is to find ways that demonstrate the impact of the foreign national’s work. The first step is to compile a list of citations of the foreign national’s work by third parties outside their immediate working circle. A citation checker can be used to accumulate these citations, however the applicant should select to filter out any self-citations, as this can dilute the result.
Next, the applicant should consider requesting reference letters from peers in the field who can attest to the expertise of the applicant or the impact of the foreign national’s work. Similarly, the foreign national could request a reference letter from research groups currently using the work of the foreign national in their own research.
Trade and professional journals may also be used as a reference for the significance of the foreign national’s work. This includes scholarly articles or books written by the foreign national as well as features by the journal on the foreign national’s work. Similarly, evidence of companies implementing or purchasing the work of the foreign national also demonstrates impact.
If the foreign national has presented their work at conferences, abstracts and information about the conference can serve as evidence of impact.
For professors and researchers in the humanities and soft sciences, excellence can also be demonstrated through the inclusion of their work on the syllabi of undergraduate or graduate students.
This criterion pairs well with the previous criterion for original contributions of major significance. Typically, major contributions in any academic field are documented and published as articles in professional journals. Notice again that the criterion lists scholarly articles in the plural, indicating that the foreign national must be able to present multiple articles to demonstrate their excellence in their respective field.
Self-published scholarly articles and books should not be submitted for consideration.
To properly submit evidence for fulfillment of this criterion, foreign nationals should include copies of the first pages of their scholarly articles as well as present information regarding the journals in which they were published, specifically acceptance rate and ranking.
Many researchers, along with their pursuit of their own academic goals, also contribute peer reviews for colleagues in their same field. Through this criterion, the USCIS aims to recognize professors and researchers who have made significant contributions to their field through their reviews of published work. Again, the term “significant” plays a major role here. Many professors and researchers have provided reviews of their peers’ work, but in order for their work to qualify for this criterion, the foreign national must be able to prove that their contributions in reviewing published work have made a significant impact.
Merely contributing to the academic world by peer-reviewing a couple of articles here and there will not be enough to qualify for the EB-1B classification. Typically, to qualify under this criterion, the foreign national must either sit on a journal’s editorial board or have peer-reviewed an unusually high number of articles. As with the previous criterion, the burden is on the foreign national to provide context regarding the prominence of the journals for which they have reviewed work.
To properly submit evidence for fulfillment of this criterion, foreign nationals should compile the articles they have peer-reviewed. If they sit on the board of a publication or if they have reviewed a significant number of articles for a single publication, it may be wise to request a letter of reference from someone who manages the publication.
To qualify for this criterion, the foreign national must be a member of organizations that require excellence within a field of study as a prerequisite for joining. This criterion does not include organizations where the foreign national may simply pay a membership fee and gain admission, as well as student organizations or associations at the university level. There must be a strict selection process that the applicant should take care to describe in their application. Furthermore, foreign nationals should mention whether they play a prominent and/or critical role in these organizations.
If the applicant chooses to describe membership in such organizations, they should again make sure to provide context for the USCIS official regarding the relevant prominence of the organization if it is not internationally acclaimed. Foreign nationals should again note that just like previous criteria, this criterion only applies if the applicant is a member of multiple distinguished organizations, not just one.
To properly submit evidence for fulfillment of this criterion, the foreign national should collect materials that illustrate the competitive nature of the organization. Membership in an organization is only meaningful in the eyes of the USCIS if there are rigorous criteria. Applicants can further demonstrate the significance of this organization by including a list of notable past and present members of the organization.
If the foreign national holds a prominent and/or critical role in a distinguished organization, they should also gather evidence to illustrate the importance of their role.
Documentary evidence that mentions the position and responsibilities of the foreign national in this organization should be submitted, if available. Foreign nationals should also consider requesting a letter of reference from a fellow member of the organization in a similarly prominent role.
If the foreign national’s work has been given the spotlight by any professional, trade, or major media publication, then they may qualify under this criterion. This is distinct from the scholarly articles criterion in that in order to qualify, the work of the foreign national must be highlighted by someone else, as opposed to a journal just publishing the work of the applicant that they submitted themselves.
To qualify on grounds of general media attention, the work of the foreign national must be recognized by a major media platform. Recognition by local news sources, blogs, or university-level publications is not sufficient. These major media platforms are not required to be Western in nature (i.e. outlets that primarily serve the Western world such as BBC, CNN, etc.), but the applicant should be able to contextualize the media outlet as well known in their country of origin.
Foreign nationals may also qualify for this criterion if their work has been highlighted by a major trade or professional journal. The foreign national similarly may qualify if their work is recognized on the website of an internationally recognized trade or professional organization.
This may also serve as evidence for the first criterion of original contributions of major significance.
To properly submit evidence for fulfillment of this criterion, the foreign national should submit copies of the media or journal coverage they have received. In an effort to contextualize the publication, the foreign national should include any data available regarding the reach of the publication. For example, The Irish Times may not seem like a significant publication to an unsuspecting USCIS officer, but when coupled with the data that the publication has more than 3.6 million unique viewers per month, any media coverage begins to seem more significant.
If the foreign national has received a lesser internationally or nationally recognized prize for excellence in contributions to their field, they qualify for this criterion. The distinction of ‘lesser prize’ is made here only because receipt of a major international prize (such as the Nobel Prize) may qualify the foreign national for the EB-1A visa intended for aliens of extraordinary ability. The award must truly be ‘major’ in nature, in that it must be a highly competitive and highly respected award to win. Applicants should note that in the majority of cases, university or post-doc awards, grants, conference awards, and fellowships do not qualify here.
To properly submit evidence for fulfillment of this criterion, the foreign national should research and describe the competitive nature of the award. The foreign national should seek to answer questions like: How many people were considered? What criteria must the foreign national meet to win the award? How was the winner determined? The applicant should also include a copy of any Formal correspondence regarding receipt of the award.
If the foreign national does not qualify for more than one of the above criteria, there is still a chance they may qualify for the EB-1B visa. Under exceptional circumstances, perhaps due to the unusual nature of their field of expertise, the USCIS is willing to review comparable evidence for excellence submitted by the foreign national.
As mentioned above, including reference letters in the immigrant visa petition application may significantly strengthen the foreign national’s case. To ensure the referee communicates the desired information in the reference letter, the foreign national should consider drafting the letters ahead of time. The letter should focus specifically on the foreign national’s influence and contributions to their field, and should stay away from general and subjective statements about the applicant’s personal qualities that reference letters otherwise may typically include. Reference letters should come from a mix of collaborators within the applicants own circle and external professional contacts that are familiar with the foreign national’s work.
The application should be highly organized to maximize the probability of success for the foreign national. Achievements of the foreign national should be prominently featured. A detailed table of contents will help direct the USCIS official to the most important aspects of your application.
Required Documentation
When the application has been completed to the satisfaction of the applicant, the packet should be submitted to the USCIS Dallas Lockbox. The mailing information can be found below:
If Filing Form I-140 By Itself:
If FIling Form I-140 Concurrently with Form I-485 [Application to Register Permanent Residence or Adjust Status]:
Once the immigrant visa petition has been approved, the foreign national is cleared to continue to their next step on the route to permanent resident status — immigrant visa processing or adjustment of status. Either route is open to all applicants with approved immigrant visa petitions.
Typically, foreign nationals already residing in the United States on a nonimmigrant visa (e.g. L-1 or E-2) will pursue adjustment of status, which involved filing for permanent resident status through domestic agencies. Foreign nationals seeking permanent resident status while still living abroad typically seek out immigrant visa processing, which involves applying for the immigrant visa through a U.S. embassy or consulate abroad.
These are not strict requirements, but are the norm — those living abroad may equally pursue adjustment of status, just as those living in the United States may pursue immigrant visa processing, each individual circumstance is different and foreign nationals should research both options to determine which will provide the best outcome.
Once the EB-1C I-140 petition is approved, the employee’s spouse and unmarried children under the age of 21 may apply for permission to enter or remain in the United States under E-14 (spouse of a priority worker) and E-15 (child of a priority worker) immigration status, which also provides them with the right to work and makes them eligible for permanent residence in due course. The foreign national may file the E-14 and E-15 related applications directly or they may the employer may do it on his/her behalf.
Although most EB-1B petitions are successfully approved every year, EB-1B petition denials do occur, typically when the application is not properly prepared or when the sponsoring organization or the foreign national employee are not eligible to utilize the EB-1C visa process. The majority of rejected EB-1B petitions are denied on technical grounds. Such denials can be easily avoided if the Form I-140 and supporting documentation are carefully compiled in accordance with published requirements.
A major issue that leads to the rejection of EB-1B immigrant visa petitions is that submitted information is inconsistent across different parts of the application and/or required documents are missing. Whether information inconsistency is enough to warrant the EB-1B petition’s denial is up to the consular officer reviewing the case. The presence of inconsistent information in the application or missing supporting evidence can put the entire application in jeopardy and may lead to a denial. The best way to avoid providing inconsistent information or missed documents is to proofread and double-check the application package carefully. If the consular officer encounters inconsistent information or missing documents, they may request additional information or may reject the application outright.
The next reason why one might be denied is because of one’s criminal record. As part of its EB-1C petition review process, USCIS conducts a thorough background check for the visa beneficiary. A criminal record (even minor infractions) in the United States or in the country of origin is likely to result in the denial of the EB-1C petition application.
An applicant also may be rejected because of a violation of visa status. Violations of visa status are taken very seriously by the USCIS. Typical violations include the foreign national overstaying their temporary employment visa or remaining in the United States after a tourist visa expires. Such “out of status” violations may have serious consequences for the applicant, as they may not only result in a bar on the individual’s ability to enter the United States but may also impact the individual’s ability to obtain other visas for a foreseeable future.
Even if the foreign national is an ideal candidate for EB-1B, the sponsoring organization may fail to meet the EB-1B qualifications. Employers who are unable to demonstrate that they can offer the foreign national a full-time, permanent role that will pay proper wages will cause the applicant to be rejected by no fault of their own.
Finally, failure on the part of the sponsoring employer to provide the proper application fees can result in denial of the petition. Due to the changing filing requirements and fluctuating fee structures, some applications never reach the consideration or decision phase due to insufficient fees filed with the application. Applicants and sponsoring employers should always be careful and check the USCIS website for the most current fee breakdown.
If the EB-1B petition application is denied, the foreign national may consider refiling the application, pursuing the appeals process, seeking a reconsideration, or considering other application alternatives.
The refiling option is generally available when the petition is denied because of a minor error or omission, such as missing documents in the original application package, wrong location for the filing, or an incorrectly paid fee. The refiling is also an option if the USCIS denied the application due to lack of sufficient supporting documentation, and the foreign national has since secured additional supporting evidence to provide the USCIS with the refiling.
If the EB-1B petition application was denied due to lack of eligibility, the refiling is likely to result in another denial and, therefore refiling would not be a good strategy. The denial of the EB-1B immigrant visa petition be appealed to the Administrative Appeals Office (AAO), but this can take several years to result in a decision. Except in rare cases of blatant disregard for review procedures or a clear error on the part of the USCIS reviewer, AAO usually upholds the USCIS decisions anyways. The appeals process is only available to EB-1B applicants who are presently residing in the United States and are in the country under nonimmigrant status. The decisions made by consular posts abroad generally cannot be appealed.
Another alternative is to submit a motion for the USCIS to reopen the case. This can be done if the foreign national can provide additional information that was not available when the petition was originally filed. Alternatively, the petitioner can claim that the reviewer was in error in denying the petition and a new consideration is warranted.
The motions to reopen or to reconsider are different from the standard refiling process. When the petition is refiled, it is done in response to the deficiencies identified by the reviewer. The request to reopen the case, on the other hand, is a request to look at the case again because of an error on the part of the reviewer. If the reconsideration does not yield a favorable outcome, alternative visa options must be considered.
Finally, if the EB-1B route is not viable, the petitioner should consider alternative, albeit less advantageous, routes to permanent residence. The EB-2 or EB-3 visas are possible for foreign nationals who do not qualify for EB-1B status. The major downside, though, is that if the rejected applicant decides to apply instead for EB-2 or EB-3, they will have to go through the time-intensive labor certification application process.