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  • #16
    Immigration Law Practice Expediter 2.01


    Immigration Law Practice Expediter
    Copyright 2004, Matthew Bender & Company, Inc., a member of the LexisNexis Group.


    Employment-Based Preference Petitions


    Immigration Law Practice Expediter 2.01

    First EB Preference (EB-1) (Priority Workers)--Eligibility Requirements and Filing Procedure



    This preference consists of the following three categories, sharing, without allocation among them, about 40,000 visa numbers per year:Practice Tip 10

    - Workers of extraordinary ability

    - Outstanding academics and researchers

    - Certain transferring multinational executives and managers


    Authority: See INA § 203(b)(1), 8 U.S.C. § 1153(b)(1); 8 C.F.R. § 204.5(a)-(j).


    Discussion: See also Immigration Law and Procedure §§ 39.01-39.03.


    The foreign national's priority date is the date on which the I-140 immigrant petition was accepted (or "receipted in") by the USCIS (formerly known as the BCIS and, before that, the INS), or the earliest date another I-140 immigrant petition or approved labor certification application was filed for the foreign national in one of the first three EB preferences.


    The spouse and child of the petition's beneficiary are entitled to the same preference and priority date if accompanying or following to join.


    No labor certification is required for the EB-1 preference category, which is one of that category's great advantages.


    If an offer of employment is needed, the petitioner must demonstrate its ability to pay the proffered wages through either an annual report, federal tax return, or audited financial statement. (If the company employs at least 100 workers, the petitioner may submit a statement by its financial officer).


    Authority: See 8 C.F.R. § 204.5(g)(2).


    The petition may be filed together with an application for adjustment of status if approval of the petition would make a visa number immediately available.


    Authority: See 8 C.F.R. §§245.1(g), 245.2(a)(2)(i), as amended, 67 Fed. Reg. 49,561, 49,563 (July 31, 2002) (restoring concurrent filing for applicants in the first three EB preferences).


    The I-140 immigrant petition should be filed with the service center having jurisdiction over the place of intended employment.


    For Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, Vermont, Virginia, and West Virginia, file with:


    USCIS Vermont Service Center


    75 Lower Welden St.


    St. Albans, VT 05479


    For Alaska, Colorado, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming, for I-140s filed concurrently with Form I-485, file with:


    USCIS Nebraska Service Center


    P.O. Box 87485


    Lincoln, NE 68501-7485


    For I-140s filed alone:


    USCIS Nebraska Service Center


    P.O. Box 87140


    Lincoln, NE 68501-7140


    For Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas, for I-140s filed concurrently with Form I-485, file with:


    USCIS Texas Service Center


    P.O. Box 852939


    Mesquite, TX 75185-2939


    For I-140s filed alone:


    USCIS Texas Service Center


    P.O. Box 852135


    Mesquite, TX 75185-2135


    For Arizona, California, Hawaii, and Nevada, file with:


    USCIS California Service Center


    P.O. Box 10140


    Laguna Niguel, CA 92607-1014


    (A) Extraordinary Ability in the Sciences, Arts, Education, Business, or Athletics


    (1) Eligibility Requirements


    Authority: See INA § 203(b)(1)(A), 8 U.S.C. § 1153(b)(1)(A).


    Discussion: See also Immigration Law and Procedure § 39.03.


    A foreign national beneficiary must demonstrate that he or she possesses a level of expertise that places him or her at the top of his or her field, as shown by national or international acclaim.

    - The beneficiary must also continue to work in his or her field of expertise.

    - The beneficiary's admission to residence must continue to benefit the United States.


    (2) Filing Procedures.


    Discussion: See Immigration Law and Procedure § § 39.03[2][c], [d], 43.03.

    - Have the application on Form I-140 signed by or on behalf of the foreign national.

    - Provide documentation of achievements in form of

    awards,

    memberships,

    published material by or about the foreign national,

    evidence showing the foreign national has judged the work of peers in the field,

    significant achievements in the field,

    authorship,

    exhibition,

    significant performances,

    high remuneration,

    commercial success,

    or comparable evidence, as described at 8 C.F.R. § 204.5(h)(3).Practice Tip 11

    - Submit a statement by or on behalf of the foreign national, describing the significance of the documentation above and showing, by statement or preferably by job offer, contract, or other evidence, that he or she will continue in the field of expertise. No other evidence is ordinarily needed to show how the foreign national's entry will benefit the United States.

    - Submit the filing fee per 8 C.F.R. § 103.7(b);Practice Tip 12

    - Enclose Form G-28 if the petitioner is represented.

    - File with the service center having jurisdiction over the place of employment.

    - Supply evidence of the petitioner's ability to pay the foreign national's salary.


    Authority: See 8 C.F.R. § 204.5(g)(2).


    (B) Outstanding Professors and Researchers


    (1) Eligibility Requirements


    Authority: See INA § 203(b)(1)(B), 8 U.S.C. § 1153(b)(1)(B); 8 C.F.R. § 204.5(i).


    Discussion: See also Immigration Law and Procedure § 39.03[3].

    - The foreign national beneficiary must be recognized internationally as an outstanding teacher or researcher in a specific academic area, as evidenced by at least two of seven types of prescribed documentation described below.

    - The foreign national must have at least three years of experience in teaching or research in the academic area and have a prospective job

    n</SS> with a U.S. university or institution of higher learning offering either (a) a tenured or tenure-track teaching position in the foreign national's field or (b) a permanent research position, i.e., tenured, tenure track, or for an indefinite time and in which an employee can ordinarily expect continued employment except for good cause;

    n</SS> or with an eminent department, division, or institute of a private employer offering a permanent research position as defined above.


    (2) Filing Procedures.


    Discussion: See Immigration Law and Procedure § 39.03[3], § 43.03.

    - Form I-140 signed by prospective U.S. employer.

    - Evidence of foreign national's international recognition as outstanding in field specified in petition, including major awards, memberships, citation by others of foreign national's work, judging of peers, original contributions, publication of work, as specified.


    Authority: See 8 C.F.R. § 204.5(i)(3).

    - Evidence of three years of teaching and/or research.

    - Petitioner's letter describing the significance of the documentation above, making a job offer to tenured, tenure-track or permanent position, as defined above. If a private employer, show: (1) that the employing department, division, or institute employs at least three people full-time in research positions and (2) that it has itself achieved documented accomplishments in an academic field (and supply that documentation).

    - Evidence of petitioner's ability to pay the foreign national's salary.


    Authority: See 8 C.F.R. § 204.5(g)(2).

    - Filing fee per 8 C.F.R. § 103.7(b).

    - Form G-28, if the petitioner is represented.

    - (No labor certification is needed.)

    - File with the USCIS service center having jurisdiction over the place of intended employment.


    (C) Multinational Executives and Managers


    (1) Eligibility Requirements.


    A foreign national who is coming to the United States to be employed by an entity that is related to the entity abroad where she has worked as a manager or executive for at least one year during the last three.


    This EB category is analogous to the nonimmigrant intracompany transferee (L-1), except that (1) it doesn't permit ''specialized knowledge" as a basis for qualification and (2) the immigrant applicant must have had managerial or executive experience during the qualifying year abroad, in addition to assuming a managerial or executive position in the United States.


    Authority: See INA § 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C); 8 C.F.R. § 204.5(j).


    Discussion: See also Immigration Law and Procedure § 39.03[4].

    - The petitioner must be a U.S. employer doing business in the United States for at least one year.

    - The petitioner must be offering the foreign national a job in an executive or managerial capacity.

    - The foreign national must have been employed abroad by the petitioner in an executive or managerial job for one year during the last three years.

    - The employment abroad must be with the same petitioner or a parent, affiliate, or subsidiary of that petitioner.

    - The year's employment abroad must have occurred during the three years immediately preceding the petition or, if the alien has been employed in the United States by the petitioner or its parent, affiliate, or subsidiary as a nonimmigrant, within three years before the nonimmigrant entry.


    Authority: For definitions of the terms ''affiliate," ''doing business," ''executive capacity," ''managerial capacity," and ''subsidiary," see 8 C.F.R. § 204.5(j)(2).


    (2) Filing Procedures.


    Discussion: See Immigration Law and Procedure § 39.03[4], § § 43.03-43.08.

    - Form I-140 signed by the prospective U.S. employer.

    - The petitioner's statement attesting to each of the elements of eligibility referred to in Section (1), "Eligibility Requirements," above.

    - Other evidence demonstrating the required relationship between the petitioner and foreign employer, such as SEC Form 10-K, a printed annual report, or another document listing the companies and their relationship; or a separate statement by a company executive, such as its financial officer, attesting to knowledge of ownership of the company or companies, preferably with copies of relevant pages in a stock transfer ledger or equivalent record.

    - Evidence of petitioner's ability to pay the foreign national's salary.


    Authority: See 8 C.F.R. § 204.5(g)(2).

    - Filing fee per 8 C.F.R. § 103.7(b).Practice Tip 13

    - Form G-28, if the petitioner is represented.

    FOOTNOTES:
    Practice Tip 10.
    As it may be unclear for which preference or even subcategory within a preference the applicant may most easily qualify, it may be sensible to apply under more than one: nothing but the effort and cost involved inhibit the filing of multiple petitions.

    Practice Tip 11.

    Evidence of a single achievement is enough if at Nobel Prize level; otherwise, evidence in at least three of described categories is necessary. (Copies are sufficient unless originals are specifically requested by the USCIS.)

    Practice Tip 12.
    The USCIS will not accept a fingerprint card (FD-258) except from certain applicants for benefits who are applying from abroad. Instead of filing the completed fingerprint card, the applicant should submit a separate fingerprinting fee in addition to the application fee. USCIS will then send an appointment letter so that the applicant can be fingerprinted at an authorized fingerprint site. For more information, consult the USCIS information online at http://uscis.gov/graphics/formsfee/finger/allapps1.htm.

    Practice Tip 13.
    The USCIS will not accept a fingerprint card (FD-258) except from certain applicants for benefits who are applying from abroad. Instead of filing the completed fingerprint card, the applicant should submit a separate fingerprinting fee in addition to the application fee. USCIS will then send an appointment letter so that the applicant can be fingerprinted at an authorized fingerprint site. For more information, consult the USCIS information online at http://uscis.gov/graphics/formsfee/finger/allapps1.htm.

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