Employment-Based Immigration Without a Backlog or a Labor Certification

By Reeves & Associates 

Employment is one of the most common methods of obtaining lawful permanent resident status in the United States.  There are numerous employment-based preference categories and several sub-categories within those preferences. 

Correctly determining under which category or categories one qualifies is the beginning of the journey on the road to successfully immigrating to the United States in the shortest time possible.  This article will focus on the possibility of immigrating through extraordinary ability.  This preference category is commonly called “EB-1”.

The most attractive aspect of the EB-1 visa is that no job offer from an employer is required.  This is significant, because the applicant does not need an employer sponsor.  The applicant can submit a self-petition with the United States Citizenship and Immigration Services (“USCIS”) without an employer.  Furthermore, the applicant does not have to obtain a labor certification from the United States Department of Labor as a prerequisite to legal permanent residency.

The second most attractive part of an EB-1 visa is the lack of visa backlogs.  This means that the alien and his spouse and unmarried minor children can look forward to immigrating shortly after the approval of the EB-1 petition. The EB-1 is a preference for non-citizen’s of exceptional ability.  “Extraordinary ability” is defined as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.”The EB-1 is aimed at providing the best and brightest aliens with a visa as a priority worker who skills and talents are valuable to the United States.

The extraordinary ability alien’s entry in the United States must “substantially benefit prospectively the United States.” To qualify as a priority worker, the applicant must be an alien of extraordinary ability in the arts, sciences, education, business or athletics (“EB-1A”), an outstanding professor or research (“EB-1B”), or a multinational executive or manager who will work in the United States for the same multinational employer for whom he was employed abroad for one out of the last three years in an executive or managerial capacity.(“EB-1C”)  The three classes of EB-1 priority workers have distinguishing characteristics and requirements for eligibility. 

To qualify for an EB-1A visa, the applicant must show through extensive documentary evidence that he has sustained national or international acclaim in his field of expertise andbe coming to the United States for the purpose of continuing work in his field of expertise.There are two ways to show extraordinary ability.  The applicant can either show a high level of achievement in his field by receipt of a major internationally recognized award or she can prove qualification by means of three out of ten potential criteria. 

These include receipt of awards for excellence; original contributions of major significance to the field; authorship of scholarly articles; work having been displayed at artistic exhibitions or showcases; performance of a critical role in distinguished organizations; significantly high remuneration in relation to others in the field; or commercial successes in the performing arts. Highly skilled and accomplished aliens who do not qualify for EB-1 may qualify may qualify for EB-2 which is the employment-based preference for members of the professions holding advanced degrees or persons of exceptional ability. 

Because the standard for these visas is also high, they tend to be current or less backlogged than EB-3, which is the usual avenue through which skilled and other workers immigrate. The Immigration & Nationality Act (INA) and the regulations have very specific requirements for qualification and for meeting the burden of proving eligibility.  And it is the alien’s burden to show that she qualifies.  Therefore, consultation with an experienced and knowledgeable immigration attorney is essential as soon as one begins to contemplate immigrating to the United States through employment.