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First Preference (EB-1) Categories

Aliens with Extraordinary Ability

Aliens with Extraordinary Ability INA 203(b)(1)(A): This immigrant visa is available for immigrants with extraordinary ability in the sciences, arts, education, business or athletics. These individuals must have attained national or international acclaim through extensive documentation. These individuals must seek entry to continue their work in the field of extraordinary ability. Lastly, the entry of these individuals would benefit the United States. Even though the regulations do not require this, documentation of such benefits may be beneficial. These individuals do not need an employer but must intend to continue their work in the United States. 

INA §204(a)(1); 8 CFR §204.5(h)(5). Congress intended these visas for a small percentage of persons who have risen to the very top of their field of endeavor. 

Evidence must include:

Evidence of one-time achievement such as a major internationally recognized award (Noble Prize); or

Documentation of any three of the following:

  • Receipt of lesser nationally or internationally recognized prizes or award;
  • Membership in an association in the field for which classification is sought which requires achievements by their members;
  • Published materials about the person in professional or major trade publications;
  • Participation as a judge of the works of others;
  • Evidence of original scientific, scholastic, artistic, athletic, or business-related contributions;
  •  Authorship of scholarly articles in the field;
  • Artistic exhibitions or showcases;
  • Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
  • High salary or remuneration in relations to others in the field;
  • Commercial success in the performing arts.

Submission of evidence proving three of these categories is not dispositive and United States Immigration & Naturalization Services must still make a final determination of eligibility. The Burden of proof is on the applicant and must be shown by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010).

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Certain Multinational Executives and Managers

The immigrant must have been employed abroad for one year (in the last 3 years) by the firm or corporation or other legal entity or an affiliate or subsidiary. Affiliates include entities owned and controlled by the same group of individuals in approximately the same percentages. 8 CFR §204.5(j)(2). Subsidiaries can be joint ventures if they have equal control and veto power. The Petitioner must show the corporate relationship and that the company will continue to exist after the Beneficiary immigrates. The Beneficiary must com in to the United States to continue working for the same employer. The company must be doing business in the United States for one year.

Managerial and executive capacity is defined under INA §101(a)(4). 

Managerial capacity means that the employee personally:

  • Manages the organization, department, subdivision, function, or components;
  • Supervises and controls the work of other supervisory, professional or managerial staff;
  • Has authority to hire and fire employees and other subordinates; and
  • Exercises discretion over day-to-day operations of the activity or function.

Executive capacity is defined as an assignment in an organization in which the Beneficiary personally:

  • Directs the management of the organization;
  • Establishes goals and policies;
  • Exercises wide latitude in discretionary decisions; and
  • Receives only generalized supervision or direction from high-level executives, the board of directors, or stockholders.

Please call American Dream Law Office, PLLC by dialing (888) 991-3336 if you have any questions about first preference petitions for permanent residence.

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Second Preference (EB-2)

Second Preference (EB-2) INA §203(b)(2) - This preference category is for members of the professions holding advanced degrees or immigrants of exceptional abilities. The advanced degree must be higher than a bachelor’s and could be me by a BA and work experience.

The position that the Beneficiary would occupy must require an advanced degree and the person must possess the qualifications. A professional is defined in INA §101(a)(32).

National Interest Waivers are available for people who would enrich the United States. People whose jobs are on Schedule A do not have to test the labor market and do not have a job offer at the time of adjudication of the I-485.

Bachelor’s degree plus five years of experience

A Bachelor’s degree with five years of progressive experience is the equivalent of a MA degree. 8 CFR §204.5(k)(3)(i)(B). Congressional intent shows that a person with this combination has the equivalent of an advanced degree. USCIS policy is that the BA cannot be met by a combination of experience and education but can be met by a combination of education. The five years of progressive experience must involve more responsibility and knowledge in the field of specialty.

Definition of Exceptional Ability

Exceptional ability is defined as a degree of expertise significantly above the level ordinarily encountered. Matter of Kim, 12 I&N Dec. 758 (AV 1968). The applicant must show proof of 3 of the following:

  • Degree relating to the area of specialty;
  • Letter from employers showing 10 years of experience;
  • Licenses to practice a profession;
  • The applicant commanded a salary demonstrating exceptional ability;
  • Membership in professional association; and
  • Recognition for achievement and significant contributions to the industry.

Comparable evidence might be submitted including expert opinion letters. 8 CFR §204.5(k)(3)(iii). This includes athletes and entertainers. The two steps process in Kazarian is used to show exceptional ability.

National Interest Waivers (NIW)

A National Interest waiver is available under INA §203(B)(2)(B). The employer or the applicant can sign the petition. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). To qualify for the waiver, the Beneficiary must submit an ETA-9089 with a statement supporting the waiver claim. 8 CFR §204.5(k)(4)(ii). The waiver is only available for EB-2 petitions. In Dhanasar, the AAO issued new categories for the waiver. Under the ruling, the applicant must show 1) the proposed endeavor has national importance and substantial merit; 2) he or she is well-positioned to advance the endeavor, and 3) it would be beneficial for the United States to waive the labor certification. Dhanasar, at 889 no. 9.

Physicians may qualify for a Physician National Interest Waivers (PNIW). International medical graduates (IMGs) are precluded from entering the United States. However, the ground of inadmissibility does not apply in these situations:

Applicant possesses a certificate from the Educational Commission on Foreign Medical Graduates, is competent in English, and the clinical skills assessment examination.  8 CFR §214.2(h)(viii)(B);

Doctor of International or national renown;

Not entering the United States to become a doctor, including professors, persons entering under another preference category, or when he or she enters as an asylee.

Under INA §203(b)(2)(B)(ii) if the physician is entering the United States under an offer of employment, the physician must obtain a labor certification or a national interest waiver. Some physicians may work in an underserved area to overcome the J-2 2 years requirement. To obtain this benefit, the physician must show 1) he or she must work in a health shortage area or for the VA; 2) a federal or state agency must determine that the employment would be in the national interest, and 3) must work in the area for 5 years before he o she becomes eligible for adjustment of status or immigrant visa. 8 CFR §214.2(a)-(c).

A foreign medical graduate may also apply under the regular labor certification process. 8 CFR §214.2(a)-(c).

Call us at (888) 991-3336 or complete our online form for information about EB-2 employment-based petitions for permanent residence. Se habla Español.

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American Dream®™ Law Office

Attorney Ahmad Yakzan has lived the immigrant experience and is ready to represent you to reach your American Dream®™. Attorney Yakzan’s passion in representing his clients has earned him an excellent reputation in the legal community. This reputation is what sets him apart from other deportation, asylum and criminal immigration practitioners. He would be happy to use this passion to help you achieve your immigration goals.

For your convenience, we offer in-person, phone, or teleconferencing consultations. Attorney Ahmad Yakzan would be glad to accommodate you in one of our offices in St. Pete and Tampa. Call us today at (888) 991-3336 to schedule a consultation with Attorney Ahmad Yakzan.

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