Q: What is EB-1? and what are the document requirements for EB-1 petitions?
A: EB-1 is the Employment-Based First Preference Immigration. An EB-1 petition consists of Form I-140 and supporting
documents to show that the beneficiary meets the EB-1 criteria. There are no specific documents that are required under the
immigration laws and regulations. However, if filing an EB1-Extraordinary
Ability (EB1-EA or EB-1A) petition, you should include documentation demonstrating
that you qualify as an Alien of Extraordinary Ability.
Q. Who would qualify for aliens of "extraordinary ability"?
A: These are individuals who have received major
national/international awards. In this category, receipt of an award such as a Nobel
Prize or Academy Award suffice as evidence of "extraordinary
ability."
Absent such a specific award, the individual must
provide at least three types of evidence. The evidence may be the same as that
enumerated for "outstanding professors and
researchers".
In the case of non-scientific or
educational "extraordinary ability", individuals should have
- evidence that his or
her work has been displayed in more than one country;
- evidence that he or she
has had a lead or critical role through an establishment with a strong
reputation;
- evidence that the individual has commanded a high salary; or
-
evidence of commercial success.
Q. What are the alternative evidences of applying for
aliens of
"extraordinary ability"?
A: Since very few person receive
international award like Nobel Prize, alternative evidences of this EB1-EA
classification, based on at least three of the types of evidence outlined below,
are permitted:
- Receipt of lesser nationally or
internationally recognized prizes or awards for excellence;
- Membership in associations in the field which
demands outstanding achievement of their members;
- Published material about the alien in
professional or major trade publications or other major media;
- Evidence that the alien has judged the work of
others, either individually or on a panel;
- Evidence of the alien's original scientific,
scholarly, artistic, athletic, or business-related contributions of major
significance to the field;
- Evidence of the alien's authorship of
scholarly articles in professional or major trade publications or other
major media;
- Evidence that the alien's work has been
displayed at artistic exhibitions or showcases;
- Performance of a leading or critical role in
distinguished organizations;
- Evidence that the alien commands a high salary
or other significantly high remuneration in relation to others in the field;
- Evidence of commercial successes in the
performing arts.
Q. What is the major advantages of applying for aliens of "extraordinary
ability"?
A: 1) No labor certification is required
for this EB-1 category;
2) No job offer
or permanent job position is required for aliens of extraordinary ability;
3) Much fast
to obtain a Green Card than the EB-3 or EB-2 immigration categories.
Q. What categories are included
in the Employment-Based First Preference Immigration ("EB-1")?
A: This category is for "priority
workers." This category includes multinational
managers and executives eligible for
transfer to the United States, outstanding
researchers or professors at universities or with private employers who have
established research departments, and aliens of "extraordinary
ability" in the sciences, arts, education, business, or athletics.
Q: If I have a choice between filing an Alien of Extraordinary Ability and filing an Outstanding
Researcher or Outstanding Professor petition, which petition should I choose?
A: If you meet both criteria, you can file for an Alien of Extraordinary Ability petition
which will not bind you to any particular employer and which you may file on your own behalf.
You can also file an Outstanding Researcher or Outstanding Professor (EB1-OR, or
EB-1B) petition at the same time.
However, it requires a job offer from an employer. In addition, a change of employers while your
EB1-Outstanding Researcher or Outstanding Professor petition is pending may affect your Outstanding
Researcher or Outstanding Professor petition. Your particular situation may differ depending on your specific circumstances.
Many applicants file both petitions simultaneously. Often, one petition will be approved earlier than
the other. In addition, if one petition is denied for some reason, there is still a chance that the other petition may
be approved.
Q. How difficult is it to have a
EB-1 petition approved? Also, if I have filed an EB-1, when is my priority date?
A: The burden of proof in EB-1 cases rests solely with the petitioner.
As with all other immigration petitions, unless
you are qualified, there is no chance of approval. If a beneficiary is qualified,
then the probability of success depends largely on the way the case is
presented. If the evidence is relevant and well presented, and the argument is
made persuasively, then the case should be approved routinely.
Your priority date is the date that the USCIS receives your EB-1 petition. Nevertheless, the priority date is
irrelevant in most cases, as the EB-1 category has high priority to the USCIS processing centers.
Q. Is EB1-Extraordinary Ability a self-petition case?
and how many publications are sufficient to meet EB-1 requirements?
A; Like the National
Interest Waiver (NIW), the EB1-EA case is a
self-petition case, meaning that an employer does not need to sign the petition
form. On the other hand, the EB1-Outstanding Researcher or Outstanding Professor case
is employer specific, and the employer must sign the petition form. Due to the
second preference quota situation for those from mainland China and India, first
preference cases offer some advantages worth considering. For those concerned about NIWs, EB1-Extraordinary Ability and
EB1-Outstanding Researcher or Outstanding Professor may be options worth pursuing.
There is no specific minimum publication requirement; rather, it is determined by USCIS on a case-by-case basis.
Q. Could a self-petitioned EAD holder (through
I-140 in the
EB1-EA category, I-485 pending) work as a self- employed consultant in his area
of expertise?
A: The EB1-Extraordinary Ability
category does not require a specific job offer, but rather only clear evidence
that the individual plans to continue his or her work in the U.S. in the field
of expertise. Since it appears that this remains your intention, there is no
problem with you performing your work as a self-employed consultant rather than
a designated employee.
Q: What is a Letter of Recommendation? Whom should I contact to obtain Letters of Recommendation?
A: A letter of recommendation is also called reference letter, and it is a letter written by an expert in the alien's field or some otherwise authoritative
person in an allied or supported field. The letter discusses the abilities and accomplishments of the alien seeking an
EB-1. Letters of recommendation are an important part of an EB-1 petition.
Recommendation letters should be written by experts or scholars in
alien's field. Usually, alien applicants ask their former professors, co-workers, employers and individuals that they have met at
conferences. People who are less familiar with the alien are also recommended, as an alien who qualifies for an
EB-1 petition would be expected to have some degree of notoriety in his or her field. Anyone
who is familiar with an alien's work and has expertise in the field may write a
letter of recommendation for
an applicant.
Q: What information should be included in the
recommendation letters?
and If my boss is not willing to write a strong letter of recommendation for me, may I still get a successful EB-1?
A: Recommendation letters provide the primary supporting evidence for your petition. For instance,
the letters should include the writers' qualifications for their opinion, your achievements, awards, publishing record, society memberships, etc. There is no specific number
of letters set forth by the USCIS. You should generally include three to seven letters of recommendation in
an EB-1 case.
It is not necessary to obtain a strong letter of recommendation from your current employer to have a successful EB-1
petition, although you should get a letter from your employer if he or she is
willing to write one for you. If you obtain letters of recommendation from other experts to support an EB-1 claim, your case may
still be a successful one.
Q: My previous college professor
is always busy, for me to ask him for a letter of recommendation, what should I do?
Also, do I have
to get references letters from some third-part experts in my field?
A: Letters of recommendation are hard to draft. Often professors are too busy to draft these letters themselves and are
happy to review a draft and sign a letter provided to them by the applicant.
Often, you can draft the letter to ensure that it includes the appropriate language and meet the EB-1 filing
requirements.
The independent third-part
expert reference letters play an important role in the application, but not
required. Also, it is better that the
independent third-part experts attach their resume with their reference
letters. Their resume or curriculum vitae (CV) is very important to establish
the credibility of the reference. USCIS is more focused on the objective evidences, instead of subjective statements made by your acquaintance individuals.
Q: I do not
have good relationship with my current employer, and I am worry abut that they
may not give me a good reference letter. Do you think this will affect my
application?
A: The EB-1 Extraordinary Ability and National Interest Waiver petitions do not
need employer’s sponsorship, and a recommendation letter from your current
employer is not necessary. If you qualify for EB1 Extraordinary Ability or
National Interest Waiver, theoretically you do not have to have a specific
U.S. employer. The EB1 Outstanding Researcher or Outstanding Professor petition does need employer’s sponsorship, thus an employer‘s
recommendation letter is important in this case, but it is not required also.
Your petition depends on other
expert’s letters of recommendation and your personal qualifications, ant it
does not depend on your relationship with your current employer. If your other
evidences can establish your personal qualifications, or other reference
letters provide sufficient support for your application, then there is no need
for you to worry about your relationship with current employer.
Q: May a Ph.D. student apply for an EB-1?
I will get my Ph.D.
soon, and may not get a job offer immediately after the graduation, may I file an immigration application now, or I have to
extend my F-1 visa?
A: There are many successful cases of Ph.D. students obtaining
Green Cards in the EB-1 category.
Even if you are unable to
get a job offer within a short period of your graduation, you may still want to file EB1-EA or NIW petition now.
If you can get a practical training job, you may use the OPT time to
proceed your I-140 petition.
If your I-140 petition gets
approved, you can immediately file Form I-485 and receive the employment
authorization (EAD). Once your Form I-485 is filed, your status becomes legal even if you
do not have a permanent job.
Q: What
is the real difference between EB-1 and NIW applications? Is it possible to file two petitions such as an EB-1 and
a NIW at the same time?
A: The requirements in EB-1 and NIW are different, and the application preparation is significantly
different between these two classifications. For example, it may be likely
that one could qualify for EB-1, but not NIW. But once your I-140 is
approved, there is no major difference between these two classifications for
the I-485 application later.
It is possible to file two petitions such as an EB-1 and
a NIW at the same time.
Some applicants file two I-140 petitions simultaneously in EB-1 and NIW. There is nothing stated in the law that prohibits multiple filings.
Actually, multiple filings increase your chances.
Q: If I do not have published articles in journals within my field, may I still apply for an EB-1?
and do I
need a sponsorship from my current employer for NIW or EB-1 application?
A: Yes, there is no specific requirement that you need to have published articles in order to apply or obtain approval
of an EB-1 petition, although in many instances publications would help improve chances of approval.
The EB1-EA and NIW can be a self-petitioned application and does not need to be
sponsored by your current employer. But EB1-OR is an employer-sponsored
application, it needs to be sponsored by your current employer.
If you are currently employed,
your employer’s sponsorship may help your application, including the letters
of recommendation, and other evidences.
Q: How
could the sample reference letters in your Complete Do-It-Yourself Package help me to
prepare my recommendation letters?
A: In our Complete Do-It-Yourself
Package for EB1 Extraordinary Ability petition, we offer sample reference letters in different formats and academic fields to
help you to prepare your recommendation letters. These sample reference
letters will help you revise your draft letters, and help you to write letters
not from scratch.
Also, the time you spend to
write a letter or revise a letter would be much shorter when writing a letter
based on the provided information in the sample reference letters. Our
experience has taught us that this is a better way to combine the petitioner's
skills and our
knowledge. Your reference letters prepared in this way are
more appropriate, more accurate, and more convincing.
Q: What is the
permanent job offer? I have received a job offer from my employer. Is my employer required to employ me permanently?
A: A permanent job offer is any job without a defined termination date. Most jobs are permanent jobs, and
a permanent job is unrelated to salary or title.
On the other hand, a lot of jobs involve an employment "at will" relationship. In such a case,
you or your employer may terminate the employment relationship at any time for
any or no reason at all.
Q: If I do not have a permanent offer of employment, can I still apply for an EB-1 petition?
If I do not have any awards in my field, may I still apply for an EB-1?
A: If you do not have a permanent offer of
employment, you are still eligible to apply for an Alien of Extraordinary Ability category petition.
But you would not be eligible to apply for an EB1 Outstanding Researcher or Outstanding Professor
category petition, since this petition requires a permanent research or
teaching job offer.
If you do not have any awards in
your field, you still can apply for an EB-1. There is no specific requirement that you
must have awards in order to apply or obtain approval of an EB-1 petition, although in many instances awards would help improve chances of approval.
Q: What if I change jobs while my Extraordinary Ability Alien petition is pending? I would like to file an Alien of
Extraordinary Ability case, but I plan to move in three months to a different state. What will happen to my petition if
I move?
A: It will have no effect upon the status of your case, and your petition will remain active. Extraordinary Ability Alien petitions can be self-petitions and do not require a job offer. Therefore, you may change your employment and it will have no effect on your case as long
as you stay within your field of expertise.
Q: I am
a Ph.D student with F-1 visa, which is a non-immigrant visa. Do I have to wait
to apply for the Green Card after my graduation and changing the visa to H-1B?
A: The F-1 visa is a
non-immigrant visa, but it does not mean that a F-1 visa holder is not allowed
to apply for the Green Card. A non-immigrant visa holder, such as F-1 and J-1,
may change its intent thereafter receiving a nonimmigrant visa.
It is not true that a
non-immigrant visa holder must change its visa type to a nonimmigrant visa
such as H or L visa, which allows dual intent, before a Green Card petition can be filed. Generally speaking, anyone can file
an immigration petition at any time if he or she meets the qualification
requirements. But, if your current F-1 visa time is not long enough for you to finish your degree, it is better to wait
to file the
Green Card application until you have extended your F-1 visa.
Q: I am
a J-1 holder subjected to the two-year foreign country residency requirement.
May I apply under EB-1 or National Interest Waiver now, and get my J-1 waiver
later?
A; Yes, you can apply for the EB-1 or National Interest Waiver now, and get your J-1 waiver later. Even with
a I-140 approval, you are still subject to the two-year foreign country
residency requirement, and need to get the J-1 waiver before you can adjust
your status to permanent resident.
You do not have to have a J-1
waiver before submitting an I-140 petition. The two-year foreign residency
requirement does not allow you to adjust the status from J-1 to permanent
residency, but it does not prevent you from submitting I-140 petition. Also, you may prepare for
I-140 and J-1 waiver concurrently. If you receive an I-140 approval before a
J-1 waiver, you need to wait for the J-1 waiver to submit the I-485
application for adjustment of status.
Q: I am currently in J-1 status and subject to the two-year home country residence requirement. If I apply for an EB-1
and get it approved, is my J-1 home country requirement waived?
A: No, a J-1 waiver and an EB-1 are two different things. A J-1 waiver is an application to waive the two-year home
country residency requirement. An EB-1 is an immigration petition. Even if your EB-1 is approved, you are still subject
to the two-year requirement. You need to either obtain a J-1 waiver or satisfy it before you may adjust your status to
a permanent resident.
Q: If I am not a member of any professional association, organization, or society in my field, may I still apply for an
EB-1? If my
petition for EB1-EA is unsuccessful, can I apply
again in the future?
A: There is no specific requirement that you
must be a member of any professional association, organization, or society in order to apply or obtain approval of an EB-1 petition, although in many instances such memberships would help
improve chances of your approval.
If your petition for EB1-EA is unsuccessful,
you can apply
again in the future. A previously
rejected petition does not bar you from submitting another petition
subsequently, regardless which classification is concerned. However,
Unless your circumstance has improved, it is not advisable to simply submit a
similar petition again. You will not be able to claim
the priority date of the previous petition. But unless the 6 year maximum of
your H-1B visa is approaching, losing a priority date is not always an issue,
because there is no waiting line for a visa number in EB-1 classifications for
most time.
Q: Does an artist or musician qualify for an EB-1?
I am not a member of any art professional organizations in my field, but may join by paying a membership fee. Should I
join some art professional associations now in order to increase my chances of approval for an EB-1?
A: Yes. Artists and musicians may apply for an EB-1.
You may join some art professional associations now in order to increase
your chances of approval for an EB-1. But the evidence that would support an EB-1 petition is membership in an association, organization, or
society requiring "outstanding achievement" of its members. If the professional association is relatively easy to join,
it may not be a factor in your EB-1 case.
Q: I am considering applying under an EB-1
classification. May I also apply for an NIW? and is there any negative effect between the two petitions? Can
letters of recommendation included in an NIW petition be used for an EB-1 petition?
A: Yes, you may also apply for an NIW
at the same time. You are not bound by only one immigrant petition category. You may petition under more than one category simultaneously. This increases your odds of getting an approval, since it is impossible to predict whether the USCIS
will approve any given case. The law does not prevent one from submitting multiple petitions
in different classifications. Each petition is adjudicated separately even if
submitted concurrently.
There is no any negative effect between the two
petitions. They are unrelated. One will not affect the other. The letters of
recommendation included in a NIW petition
should not be used for an EB-1 petition. The NIW letters of recommendation will not be effective for an EB-1 petition since an EB-1 and NIW have different
criteria.
Q: I have been denied an
I-140 petition based on Labor Certification for the reason of incorrect
job/title requirements, may I still petition for an EB-1? Between an NIW and an EB-1, which petition is recommended?
A: Yes, you still
can petition for an EB-1, assuming you would otherwise qualify for an EB-1. The standards for an EB-1 petition and a Labor Certification
are very different. A Labor Certification is based on a lack of available U.S. workers with minimum qualifications for
the particular job. By contrast, an EB-1 is based on proving that either the alien possesses an "Extraordinary Ability"
or his accomplishments have been "Outstanding", which places the alien in the priority worker
classification bypassing
the need for a Labor Certification.
You should always keep in mind that filing both
a NIW and an
EB1-EA petition concurrently is an option. However, each case is different. If your case is
strong, your chances for success are higher by applying for EB1-EA. However, if your case is not as
distinguished as successful EB1-EA cases, a NIW petition would be a sensible approach.
Q:
My employer-sponsored I-140 got approved, and my I-485 is still pending, may I
leave my current job?
A: According
to the 180 day rule of AC21, you are allowed to change job without affecting
the approved I-140, if you has a pending I-485 for 180 days or more, as long
as the new job is in the similar occupational classification as the job in the
original petition.
Q: What is a "Request for Additional Evidence"?
A: Sometimes the USCIS is not convinced that the alien petitioning under an EB-1 category has met the burden to prove
that an applicant qualifies for the EB-1 category. In such cases, they will typically submit a "Request for Additional
Evidence" or "Request for Evidence (RFE)" seeking certain forms of evidence that the USCIS finds lacking.
An applicant should take great care to present a strong case, so that it may be approved without a request for additional evidence. Nevertheless, there is no way to predict how
a USCIS officer reviewing a particular case will respond, and sometimes even the strongest of cases receive a
"Request for Additional Evidence".
It is
critical to appropriately and proficiently reply the USCIS issued Request for
Evidence, incorrect response of the RFE will directly result in your
EB1-Extraordinary Ability petition rejection. To help you replying the
Request for Evidence, and eventually turn the RFE into your Green Card, we
provide a "Complete
Do-It-Yourself Package for RFE of EB1-Extraordinary Ability (http://www.greencardapply.com/rfe.htm)".
Q. How to
apply for adjustment of status after Form I-140 approval?
A: Application Form I-485, application for adjustment of status,
is the document you are required to file after your application
for immigration based on employment 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".
With the change of immigration regulation, rules on adjustment of status become much more
restricted. You must provide visa records to establish your and
family members' continuous lawful status since you entered the
U.S. This can be a serious problem for those people whose status
expired prior to their application for immigration was approved.
Q:
My self-petitioned I-140 got approved, and my I-485 is still pending, may I
leave my current job?
A: For
self-petitioned NIW or EB1-EA application, the job change will not affect the
pending I-485. The applicants enjoys a much broader flexibility due to the
different nature of their petitions. The I-485 petition will not depend on which employer you work for during the process.
But it does
not mean that you can work on any job you like after the I-485 submitted. You need
to prove and maintain the required qualifications for EB1-EA
application. If you later get a
Request For Evidence (RFE) or an interview for the I-485 petition, and you no
longer maintain the qualifications set in the original I-140 petition, your
I-485 may be rejected.
Q: My I-485 is pending, and my
current H-1B is still valid. May I apply for a EAD and use it for a second
job?
A: You may want to always keep
a valid H-1B visa for your primary job. Your H-1B status does not prevent you
from applying for an EAD, but you do not have to use it. The benefit is that
if you lose your job and its related H-1B status, you can use the EAD
immediately to find a new job.
Using EAD for a secondary job
generally will not affect your H-1B status for the primary job. If you believe
your I-485 application may have some potential problems for approval, you
should keep your valid H-1B status.
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