1st Preference Immigrants

The First Preference employment based immigration category is separated into subcategories as follows:

1. Persons of extraordinary ability in the arts, sciences, education, business or athletics.

Extraordinary ability is dependent upon sustained national or international acclaim. The application for benefits must also be supported by substantial documentation delineated in the regulations governing these applications. Evidence includes a Nobel Prize or other similar award.

If such an award has not been received then there is a listing of evidence proving extraordinary ability and the individual is required to show evidence in at least three areas, but anyone interested in this category should clearly understand that they should display evidence that is more than bare minimum. If you are presenting bare minimum evidence then it is best to consider another category. Evidence includes: (1) receipt of a lesser known national or international prize; (2) membership in an association requiring outstanding achievement in the field; (3) published material in professional or trade journals about the applicant; (4) participation in judging the work of others; (5) evidence of original scientific, scholarly, artistic, athletic, or business related contributions; (6) authorship of scholarly articles; (7) artistic exhibitions; (8) performance in a leading or critical role for a distinguished organization; (9) high salary or remuneration in relation to others in the field; and (10) commercial success in the performing arts.

A person seeking to enter the United States under the EB-1 category for persons of extraordinary ability in the arts, sciences, education, business or athletics are not required to have an employer/ sponsor, but they are required to be entering the United States to continue the work in their chosen field of endeavor. They must also be engaging in activity that will substantially benefit the United States prospectively.

2. Outstanding Professors and Researchers.

This category always gathers interest from clients because when you are a Professor or a Researcher at the university level then you are assumed to be highly intelligent or you would not have reached the level you have attained. However, this category is intended for the best and the brightest. The individuals who fall into this category are people with a minimum of three years experience teaching or researching who are recognized internationally in their academic discipline. The regulations state that these individuals are at: a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.

To fit into this field the individual must once again provide evidence from a litany of different evidentiary proofs such as the receipt of a nationally or internationally recognized prize or award. This does not include academic honors received as part of study because the award or prize must be won in competition with others in the academic field of endeavor. Academic study is considered to be a competition among students and not the field of endeavor.

Membership in a group requiring outstanding achievements in the individual’s field is another area of proof. Here we are talking about groups such as the National Academy of Sciences, or another group that requires excellence for membership. Membership requirements based on employment or activity in a given field, a fixed minimum of education or experience, standardized test scores, grade point average, recommendations by colleagues or current members, or payment of dues, do not satisfy this criterion because participation, employment, education, experience, test scores and recommendations do not constitute outstanding achievements.

The individual can also show that materials have been published about them. This does not include articles written by the individual. This proof encompasses materials written about the individual. For instance, if a specific academic or scientific discovery or method has been attributed to a particular individual then the person may be given credit for the discovery or innovation and others may write about them and their discovery (for example Pythagoras’ Theorem).

You can also provide evidence that you have served as a judge of the work of others for a distinguished organization. You cannot simply serve as a judge of the work of others. Judging student work as part of a course is not acceptable. The prestige of the organization is of paramount importance here. In addition, you need to show that you have been specifically chosen to judge the work of others based on your expertise. In the end you need to show that you were the judge of the work of others because of expertise and not because you were just basically qualified.

Another item of evidence you can present is the scholarly articles you have authored. The prestige of the publication is once again important. For instance publishing in a small local journal with a readership of three is not going to compare to journals of great prestige. Use of the Journal of Citation Reports, Science Citation Index, NEC Research Index or SiteSeer are good ways to rank journals and show the number of times your articles have been cited as authority.

Displays at artistic exhibitions or playing a leading role in distinguished organizations can also be used to show outstanding ability. Evidence of commercial success and any other evidence that does not fit within the regulations can also be presented.

3. Multinational Executives or Managers.

This category is comparable to the nonimmigrant L-1A category. The individual must be coming to the United States to undertake duties in a managerial or executive role. They must be coming to serve in that capacity for a foreign parent, branch, subsidiary or affiliate of the U.S. company and they must have worked outside the U.S. for the foreign company for a period of one of the last three years.

Executive capacity is defined as: assignment within an organization in which the employee primarily: (1) Directs the management of the organization or a major component or function of the organization; (2) Establishes the goals and policies of the organization, component, or function; (3) Exercises wide latitude in discretionary decision-making; and (4) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Managerial capacity is defined as: assignment within an organization in which the employee primarily: (1) Manages the organization, or a department, subdivision, function, or component of the organization; (2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; (3) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

It is important that either the managerial or executive level that the employee not be involved in the actual operational activities of the company. Thus, these individuals should avoid producing the product the company sells. They are there to implement a managerial or executive vision for the company. As the Administrative Appeals Office has recognized favorably that: [t]he [individual should not] be performing the day-to-day ministerial functions [of the company] … but rather [should be] developing plans for his subordinate to carry out … . In re X, SRC 90 156 00380, 1992 Immig. Rptr. LEXIS 1136, *7 (A.A.U., 1992).

It should also be noted that: A first-line supervisor is not considered to be acting in amanagerial capacity merely by virtue of the supervisor’s supervisory duties unless theemployees supervised are professional. 8 CFR §214.2 (l)(1)(ii)(B)(4); See also In re X, LIN 95 042 51662, 1995 Immig. Rptr. LEXIS 1412, *3 (A.A.U. 1995); In re X, EAC 91 015 50419, 1991 Immig. Rptr. LEXIS 623, *6 (A.A.U. 1991) (Supervisors who plan, schedule, and supervise the day-to-day work of nonprofessional employees are not employed in a managerial or executive capacity.) [emphasis supplied].