Basic Use and Requirements

EB-1 priority workers, the first preference category for employment based permanent resident status, include aliens of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.  A qualifying U.S. employer may file an I-140 immigrant visa petition on behalf of a multinational executive or manager who has worked in an executive or managerial capacity for an overseas affiliate of the U.S. employer for at least one year during the three years before he or she applied for entry to the United States. The foreign national (transferee) must have a qualifying offer of employment, but no labor certification is required.

Eligibility Criteria

Qualifying U.S. and Overseas Employment:

• The foreign company must be an affiliate, subsidiary, parent or branch of a U.S. corporation.

• The foreign company must be doing business in the United States and at least one other country throughout the entire period in which the transferee is working in the United States.

• The foreign company must have employed the foreign national in a managerial or executive capacity for at least one year within the three years prior to the transferee’s entry into the United States.

• The employee must continue to render managerial or executive services to the U.S. employer after entry.

• The U.S. employer must provide an offer of employment as an executive or manager.

Executive capacity” is defined as an assignment within an organization in which the employee primarily:

• Directs the management of the organization or a major component or function of the organization;

• Establishes the goals and policies of the organization, component or function;

• Exercises wide latitude in discretionary decision-making; and

• Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Managerial capacity” is defined as an assignment within an organization in which the employee primarily:

• Manages a department, component or function of an organization;

• Supervises and controls other supervisory, managerial or professional personnel or manages an essential function of the organization;

• Has authority to make or recommend personnel decisions (hire/fire) or functions at a senior level in relation to the function they manage; and

• Exercises discretion over day-to-day operations of a function or activity within the organization.

Advantages

• No labor certification is required.

• Simpler process than other EB-1 categories.

The Steps of the Case

Step 1 – Initial Preparation

• The applicant submits responses to a detailed questionnaire followed by an initial consultation to determine whether he or she meets criteria.

• We work with the applicant and the employer contact to gather the necessary documentation, draft the company supporting letter, and complete the I-140 application forms.

Step 2 – Case Filing

Stage One:  Submission of I-140 Immigrant Visa Petition

• File the I-140 Immigrant Visa Petition and supporting documentation with the USCIS.

• We track the filing of the I-140 and stay on top of the USCIS until approval.

Stage Two:  Permanent Residence or “Green Card” Application (currently may be filed concurrently for most applicants)

• Depending on the facts in your case, we will advise you to pursue either Adjustment of Status here in the United States, or Consular Processing in your home country.

Adjustment of Status

We will file three concurrent applications and track the approvals for each:

1. I-485 Application to Adjust Status.

2. I-131 Application for Travel Document while adjustment is pending (“Advance Parole”).

3. I-765 Application for Employment Authorization Document while adjustment is pending (EAD).

• The applicant must not travel outside of the U.S. until receiving the approved “Advance Parole” document, unless in valid H or L status (please check with our firm for more information if employee is H or L status).

• Once the EAD arrives, the employee shows it to employer for updating Form I-9 if they plan to use it for work authorization.

• Once adjustment is approved, employee receives “Welcome Letter” from USCIS and physical Permanent Resident card within 30 days.

OR Consular Processing

• Upon approval of the I-140, USCIS sends notice of approval to the State Department’s National Visa Center (NVC).  The NVC will then assign a case number for the petition.  When the applicant’s priority date is current, the NVC will send the applicant and/or attorney instructions to submit the appropriate fees, immigrant visa documents, civil documents, etc.  Learn more about the National Visa Center employment-based immigrant visa case processing here.

• Once the NVC determines the file is complete with fees paid and all required documents, they forward the application to the appropriate consulate to schedule the consular interview.  The applicant and/or attorney will receive appointment notification by email or mail with the appointment’s date and time, and guidance for obtaining a medical examination.  Instructions vary by consulate/embassy.

• Applicant must complete the necessary medical examination and any other requested steps, and must travel to consulate for interview.  If consulate approves application for permanent residence, the applicant is given paperwork to present upon entry to U.S., green card stamp is received upon entry and card is mailed to individual within a few weeks of entry.

** This memo is provided for informational and discussion purposes only.  It does not act as a substitute for direct legal contact on an individual basis **