THE EB-1A VISA GUIDE

The EB-1A visa is a United States employment-based visa category that is available to foreign nationals who possess extraordinary ability in their field of expertise. This visa category is intended for individuals who have achieved significant recognition in their field of work and have been recognized as leaders or experts in their respective fields. In this guide, we will provide a detailed overview of the EB-1A visa category, including the eligibility requirements, the application process, and important considerations for prospective applicants.

Qualifications for the EB-1A Visa

To quality for EB-1A visa, you must demonstrate sustained national or international acclaim and that your achievements have been recognized in the field.  There are two ways to satisfy this criteria: (1) that you have received a major internationally recognized award, similar to a Nobel Prize; or (2) that you meet at least three of the ten requirements listed below and all your evidence, when evaluated together, shows that you are among the small percentage of individuals that have risen to the very top of your field.  Three of the following must be met:

1. Receipt of a major nationally or internationally recognized prizes or awards

2. Membership in associations that require outstanding achievement (as judged by recognized experts)

3. Significant published material (written by others) about you and your work

4. Service as judge of the work of others in your field

5. Major contributions to your field

6. Authorship of scholarly articles or publications

7. Artistic exhibitions or showcases

8. Leading or critical role for distinguished organizations

9. High salary or remuneration (compared to others in the field)

10. Commercial success in performing arts

 

Qualifications in Detail:

1. How to demonstrate that receipt of a major nationally or internationally recognized prizes or awards?

Evidence that may be submitted may include documentation should state the criteria for receiving the award, the significance of the award, reputation of the organization or panel, the judging process, previous winners, how many awards are awarded each year and a copy or photograph of the award,

2. How to demonstrate membership in associations that require outstanding achievement (as judged by recognized experts)

Ordinary membership in an association that is easy to join will not help since it does not require outstanding achievement for membership. Some evidence that may be submitted to satisfy this criteria include:

(a) documentations describing the associations goals, mission, size, target membership and standing within the national or international community, documentation showing minimum requirements and criteria;

(b) documentation showing the minimum requirement and criteria used for membership; (3)  Evidence of national or international experts who make determinations about membership; (4) Other relevant requirements for membership.

3. How to demonstrate significant published material (written by others) about you and your work

Evidence should include title, date and author of the material, and any necessary translations. Other evidence includes: copies of publications, documents showing significance of the published materials, circulation information for the publication, including the number of copies in the publication and frequency and any other published materials.  For example, articles referring to an applicant’s research or accomplishments on news websites such as CNN, MSNBC, Yahoo!, etc. or professional new websites such as ScienceDaily, NewsRX, etc. may be submitted.

4. How to demonstrate service as a judge of the work of others in your field?

Evidence of that can satisfy this criterion include (1) documents about the event or panel and the significance of the work judge; (2) information about the criteria used to select the individual judges; (3) an explanation of how and why you received an invitation to be a judge.

5. How to demonstrate your major contributions to your field?

Evidence of original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field. Generally, the best evidence are recommendation letters from independent experts who can discuss our achievements and how they are significant in the field.

6. How to demonstrate authorship in scholarly articles in professional journals or other major media?

To demonstrate that you have authored a scholarly article the following evidence can be submitted: (1) other articles, letters, or affidavits that show the significance and importance of the articles in the field; (2) evidence that demonstrates the work was primarily created by you and (3) the significance and importance of the professional or major trade publications or major media in which your scholarly article was published.

7. How to demonstrate that my work has been displayed at artistic exhibitions or showcases?

Some evidence to submit to demonstrate these criteria include:

(a) Documents showing that the displayed work was created by you;

(b) Documents showing that the venue (virtual or otherwise) was an artistic exhibition or showcase;

(c) Copies of promotional materials, with distribution information

8. How to demonstrate that you have been in a leading or critical role for a distinguished organization?

Some evidence to submit to demonstrate these criteria include letters and documentation verifying the leading/critical role as well as information regarding the organization or establishment’s distinguished reputation must be submitted.  Additionally, any other documents that show a major contribution in a critical or essential role.

9. How to demonstrate a high salary or remuneration (compared to others in the field)?

Evidence that can be submitted include copies of employment contracts, copies of payroll documents or tax returns, or evidence establishing that you have received other significant forms of compensation for services.

10. How do I demonstrate commercial success in performing arts?

Some evidence to submit to demonstrate these criteria include box office receipts or record, cassette, compact disk or video sales. This criterion is for singers, performing artists, musicians and movie stars.

 

Procedure for Filing  

The application process for the EB-1A visa typically involves the following steps:

  1. Filing of Form I-140: The first step in the application process is the filing of Form I-140, which is the petition for alien worker. Along with the Form I-140, the applicant must also submit evidence to demonstrate their eligibility for the EB-1A visa category. This evidence includes the documentation of the applicant’s achievements, awards, publications, and other similar accomplishments referenced above.
  2. Application review: After the Form I-140 and supporting evidence are submitted, the U.S. Citizenship and Immigration Services (USCIS) will review the application to determine whether the applicant meets the eligibility requirements for the EB-1A visa category. The application review times vary but the I-140 can be expedited using Premium Processing, which allows for adjudication within 15 calendar days.
  3. Request for evidence: In some cases, USCIS may request additional evidence or information.
  4. Adjustment of Status/Consular Processing: Once the I-140 is approved, the applicant can initiate the second phase of the process: Adjustment of Status (AOS) for those within the United States or Consular Processing for those outside the US. There are numerous considerations when deciding between AOS or CP. We have outlined a summary below. As with all immigration matters, be sure to consult your attorney prior to filing.

 

Adjustment of Status or Consular Processing – An Overview

Upon approval of the I-140 petition (and in some cases alongside the filing of an I-140) petition, the foreign national may apply for a green card. There are two methods to obtain the green card: Consular processing and Adjustment of Status (AOS) There are several key differences between these two processes, which will be explained in detail below.

In general, consular processing is the preferred method for individuals who are outside the United States, while adjustment of status is the preferred method for individuals who are already in the United States. However, the specific process that an individual is eligible for and the most appropriate option for their situation will depend on a variety of factors. It is advisable to consult with an immigration attorney to determine the best course of action.

OPTION 1: ADJUSTMENT OF STATUS FROM WITHIN THE U.S. (I-485)

Adjustment of Status (AOS) is the process by which a foreign national who is physically present in the United States can apply for a green card without having to return to their home country.

To be eligible for AOS based on an approved I-140, an individual must:

  1. Have an approved I-140 petition
  2. Have an immigrant visa available: The individual must also have an immigrant visa available in their category. The availability of immigrant visas is determined by the U.S. Department of State and is based on the individual’s preference category and the country of their birth.
  3. Be physically present in the United States: The individual must be physically present in the United States at the time they file their AOS application and at the time their application is adjudicated.
  4. Have entered the United States legally: The individual must have entered the United States legally, either with a valid visa or through the Visa Waiver Program.
  5. Meet other eligibility requirements: The individual must also meet other eligibility requirements, such as not being inadmissible on grounds of health, criminal activity, or other grounds.

To apply for AOS based on an approved I-140, an individual must file Form I-485, Application to Register Permanent Residence or Adjust Status, with the U.S. Citizenship and Immigration Services (USCIS). This application must be accompanied by supporting documentation, such as proof of the individual’s employment, their I-140 approval notice, and any other required documents.

If the individual’s AOS application is approved, they will be granted a green card and will be able to live and work in the United States permanently. If the application is denied, the individual may have the opportunity to appeal the decision or to seek review in immigration court.

OPTION 2: CONSULAR PROCESSING

Consular processing is a method by which foreign nationals can apply for a green card from outside the United States. This process is available to individuals who have an approved I-140, and meet certain other eligibility requirements.

To be eligible for consular processing based on an approved I-140, an individual must:

  1. Have an approved I-140 petition, as described above.
  2. Have an immigrant visa available (aka current Priority Date): The availability of immigrant visas is determined by the U.S. Department of State and is based on the individual’s preference category and the country of their birth.
  3. Meet other eligibility requirements: The individual must also meet other eligibility requirements, such as not being inadmissible on grounds of health, criminal activity, or other grounds.

To apply for consular processing based on an approved I-140, an individual must first file Form DS-260, Immigrant Visa Electronic Application, with the Department of State. This application must be accompanied by supporting documentation, such as proof of the individual’s employment, their I-140 approval notice, and any other required documents.

Once the individual’s application has been reviewed and approved by the Department of State, they will be scheduled for an interview at a U.S. embassy or consulate in their home country. At the interview, the individual will be required to present their passport and any other required documents, as well as undergo a medical examination.

If the individual’s consular processing application is approved, they will be issued an immigrant visa and will be able to travel to the United States to become a permanent resident. If the application is denied, the individual may have the opportunity to appeal the decision or to seek review in immigration court.

 

SUMMARY: ADJUSTMENT OF STATUS VS. CONSULAR PROCESSING

There are several key differences between these two processes:

  1. Location: Consular processing is a method of applying for a green card from outside the United States, while adjustment of status is a method of applying for a green card from within the United States.
  2. Eligibility: To be eligible for consular processing, an individual must have an approved I-140, and must attend an interview outside the United States. To be eligible for adjustment of status, an individual must have an approved I-140 and must be physically present in the United States.
  3. Interviews: Consular processing typically involves an in-person interview at a U.S. embassy or consulate, while adjustment of status based on an approved I-140 usually does not involve an in-person interview.
  4. Timing: Consular processing generally takes longer to complete than adjustment of status, as it involves multiple steps and requires the individual to travel to a U.S. embassy or consulate for an interview.

In general, consular processing is the preferred method for individuals who are outside the United States or are required to travel internationally while their green card applications are pending, while adjustment of status is the preferred method for individuals who are already in the United States. However, the specific process that an individual is eligible for and the most appropriate option for their situation will depend on a variety of factors. It is advisable to consult with an immigration attorney to determine the best course of action.

Advantages of EB-1A

The EB-1A category for aliens of extraordinary ability has the following advantages:

· Does not require a permanent job offer in the United States.

· to obtain your green card through the labor certification process.  You can also receive work and travel authorization for your spouse and children.

· More flexible than the labor certification process. Compared to the labor certification process, you may be able to change jobs much sooner and may be able to change to a much broader range of job opportunities.

· You can self-petition. That is, the petition does not require the signature of anyone at the university or company where you work.

Disadvantages of EB-1A

The EB-1A category for aliens of extraordinary ability has the following disadvantages:

· You have to be extraordinary – not just good. Not everyone qualifies.

· Can be less predictable than cases filed through the labor certification process, although the labor certification process is itself not always very predictable.

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