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Q: What is EB-1? And what are the document requirements for EB-1 petitions?
A: EB-1 is the Employment-Based First Preference Immigration. An EB-1 petition consists of Form I-140 and supporting documents to show that the beneficiary meets the EB-1 criteria. There are no specific documents that are required under the immigration laws and regulations. However, if filing an EB1-Extraordinary Ability (EB1-EA or EB-1A) petition, you should include documentation demonstrating that you qualify as an Alien of Extraordinary Ability.
Q. Who would qualify for aliens of "extraordinary ability"?
A: These are individuals who have received major national/international awards. In this category, receipt of an award such as a Nobel Prize or Academy Award suffices as evidence of "extraordinary ability."
Absent such a specific award, the individual must provide at least three types of evidence. The evidence may be the same as that enumerated for "outstanding professors and researchers".
In the case of non-scientific or educational "extraordinary ability", individuals should have
· evidence that his or her work has been displayed in more than one country;
· evidence that he or she has had a lead or critical role through an establishment with a strong reputation;
· evidence that the individual has commanded a high salary; or
· evidence of commercial success.
Q. What are the alternative evidences of applying for aliens of "extraordinary ability"?
A: Since very few people receive international award like Nobel Prize, alternative evidences of this EB1-EA classification, based on at least three of the types of evidence outlined below, are permitted:
1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
2. Membership in associations in the field which demands outstanding achievement of their members;
3. Published material about the alien in professional or major trade publications or other major media;
4. Evidence that the alien has judged the work of others, either individually or on a panel;
5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
6. Evidence of the alien's authorship of scholarly articles in professional or major trade publications or other major media;
7. Evidence that the alien's work has been displayed at artistic exhibitions or showcases;
8. Performance of a leading or critical role in distinguished organizations;
9. Evidence that the alien commands a high salary or other significantly high remuneration in relation to others in the field;
10. Evidence of commercial successes in the performing arts.
Q. What are the major advantages of applying for aliens of "extraordinary ability"?
A: 1) No labor certification is required for this EB-1 category;
2) No job offer or permanent job position is required for aliens of extraordinary ability;
3) Much fast to obtain a Green Card than the EB-3 or EB-2 immigration categories.
Q. What categories are included in the Employment-Based First Preference Immigration ("EB-1")?
A: This category is for "priority workers." This category includes multinational managers and executives eligible for transfer to the United States, outstanding researchers and professors at universities or with private employers who have established research departments, and aliens of "extraordinary ability" in the sciences, arts, education, business, or athletics.
Q: If I have a choice between filing an Alien of Extraordinary Ability and filing an Outstanding Researcher or Outstanding Professor petition, which petition should I choose?
A: If you meet both criteria, you can file for an Alien of Extraordinary Ability petition which will not bind you to any particular employer and which you may file on your own behalf. You can also file an Outstanding Researcher or Outstanding Professor (EB1-OR, or EB-1B) petition at the same time. However, it requires a job offer from an employer. In addition, a change of employers while your EB1-Outstanding Researcher or Outstanding Professor petition is pending may affect your Outstanding Researcher or Outstanding Professor petition. Your particular situation may differ depending on your specific circumstances.
Many applicants file both petitions simultaneously. Often, one petition will be approved earlier than the other. In addition, if one petition is denied for some reason, there is still a chance that the other petition may be approved.
Q. How difficult is it to have a EB-1 petition approved? Also, if I have filed an EB-1, when is my priority date?
A: The burden of proof in EB-1 cases rests solely with the petitioner. As with all other immigration petitions, unless you are qualified, there is no chance of approval. If a beneficiary is qualified, then the probability of success depends largely on the way the case is presented. If the evidence is relevant and well presented, and the argument is made persuasively, then the case should be approved routinely.
Your priority date is the date that the USCIS receives your EB-1 petition. Nevertheless, the priority date is irrelevant in most cases, as the EB-1 category has high priority to the USCIS processing centers.
Q. Is EB1-Extraordinary Ability a self-petition case? And how many publications are sufficient to meet EB-1 requirements?
A; Like the National Interest Waiver (NIW), the EB1-EA case is a self-petition case, meaning that an employer does not need to sign the petition form. On the other hand, the EB1-Outstanding Researcher or Outstanding Professor case is employer specific, and the employer must sign the petition form. Due to the second preference quota situation for those from mainland China and India, first preference cases offer some advantages worth considering. For those concerned about NIWs, EB1-Extraordinary Ability and EB1-Outstanding Researcher or Outstanding Professor may be options worth pursuing.
There is no specific minimum publication requirement; rather, it is determined by USCIS on a case-by-case basis.
Q. Could a self-petitioned EAD holder (through I-140 in the EB1-EA category, I-485 pending) work as a self- employed consultant in his area of expertise?
A: The EB1-Extraordinary Ability category does not require a specific job offer, but rather only clear evidence that the individual plans to continue his or her work in the U.S. in the field of expertise. Since it appears that this remains your intention, there is no problem with you performing your work as a self-employed consultant rather than a designated employee.
Q: What is a Letter of Recommendation? Whom should I contact to obtain Letters of Recommendation?
A: A letter of recommendation is also called reference letter, and it is a letter written by an expert in the alien's field or some otherwise authoritative person in an allied or supported field. The letter discusses the abilities and accomplishments of the alien seeking an EB-1. Letters of recommendation are an important part of an EB-1 petition.
Recommendation letters should be written by experts or scholars in alien's field. Usually, alien applicants ask their former professors, co-workers, employers and individuals that they have met at conferences. People who are less familiar with the alien are also recommended, as an alien who qualifies for an EB-1 petition would be expected to have some degree of notoriety in his or her field. Anyone who is familiar with an alien's work and has expertise in the field may write a letter of recommendation for an applicant.
Q: What information should be included in the recommendation letters? And if my boss is not willing to write a strong letter of recommendation for me, may I still get a successful EB-1?
A: Recommendation letters provide the primary supporting evidence for your petition. For instance, the letters should include the writers' qualifications for their opinion, your achievements, awards, publishing record, society memberships, etc. There is no specific number of letters set forth by the USCIS. You should generally include three to seven letters of recommendation in an EB-1 case.
It is not necessary to obtain a strong letter of recommendation from your current employer to have a successful EB-1 petition, although you should get a letter from your employer if he or she is willing to write one for you. If you obtain letters of recommendation from other experts to support an EB-1 claim, your case may still be a successful one.
Q: My previous college professor is always busy, for me to ask him for a letter of recommendation, what should I do? Also, do I have to get references letters from some third-part experts in my field?
A: Letters of recommendation are hard to draft. Often professors are too busy to draft these letters themselves and are happy to review a draft and sign a letter provided to them by the applicant. Often, you can draft the letter to ensure that it includes the appropriate language and meet the EB-1 filing requirements.
The independent third-part expert reference letters play an important role in the application, but not required. Also, it is better that the independent third-part experts attach their resume with their reference letters. Their resume or curriculum vitae (CV) is very important to establish the credibility of the reference. USCIS is more focused on the objective evidences, instead of subjective statements made by your acquaintance individuals.
Q: I do not have good relationship with my current employer, and I am worry about that they may not give me a good reference letter. Do you think this will affect my application?
A: The EB-1 Extraordinary Ability and National Interest Waiver petitions do not need employer’s sponsorship, and a recommendation letter from your current employer is not necessary. If you qualify for EB1 Extraordinary Ability or National Interest Waiver, theoretically you do not have to have a specific U.S. employer. The EB1 Outstanding Researcher or Outstanding Professor petition does need employer’s sponsorship, thus an employer‘s recommendation letter is important in this case, but it is not required also.
Your petition depends on other expert’s letters of recommendation and your personal qualifications, ant it does not depend on your relationship with your current employer. If your other evidences can establish your personal qualifications, or other reference letters provide sufficient support for your application, then there is no need for you to worry about your relationship with current employer.
Q: May a Ph.D. student apply for an EB-1? I will get my Ph.D. soon, and may not get a job offer immediately after the graduation, may I file an immigration application now, or I have to extend my F-1 visa?
A: There are many successful cases of Ph.D. students obtaining Green Cards in the EB-1 category. Even if you are unable to get a job offer within a short period of your graduation, you may still want to file EB1-EA or NIW petition now. If you can get a practical training job, you may use the OPT time to proceed your I-140 petition.
If your I-140 petition gets approved, you can immediately file Form I-485 and receive the employment authorization (EAD). Once your Form I-485 is filed, your status becomes legal even if you do not have a permanent job.
Q: What is the real difference between EB-1 and NIW applications? Is it possible to file two petitions such as an EB-1 and a NIW at the same time?
A: The requirements in EB-1 and NIW are different, and the application preparation is significantly different between these two classifications. For example, it may be likely that one could qualify for EB-1, but not NIW. But once your I-140 is approved, there is no major difference between these two classifications for the I-485 application later.
It is possible to file two petitions such as an EB-1 and a NIW at the same time. Some applicants file two I-140 petitions simultaneously in EB-1 and NIW. There is nothing stated in the law that prohibits multiple filings. Actually, multiple filings increase your chances.
Q: If I do not have published articles in journals within my field, may I still apply for an EB-1? and do I need a sponsorship from my current employer for NIW or EB-1 application?
A: Yes, there is no specific requirement that you need to have published articles in order to apply or obtain approval of an EB-1 petition, although in many instances publications would help improve chances of approval.
The EB1-EA and NIW can be a self-petitioned application and does not need to be sponsored by your current employer. But EB1-OR is an employer-sponsored application, it needs to be sponsored by your current employer. If you are currently employed, your employer’s sponsorship may help your application, including the letters of recommendation, and other evidences.
Q: If I do not have a permanent offer of employment, can I still apply for an EB-1 petition? If I do not have any awards in my field, may I still apply for an EB-1?
A: If you do not have a permanent offer of employment, you are still eligible to apply for an Alien of Extraordinary Ability category petition. But you would not be eligible to apply for an EB1 Outstanding Researcher or Outstanding Professor category petition, since this petition requires a permanent research or teaching job offer.
If you do not have any awards in your field, you still can apply for an EB-1. There is no specific requirement that you must have awards in order to apply or obtain approval of an EB-1 petition, although in many instances awards would help improve chances of approval.
Q: I am a Ph.D student with F-1 visa, which is a non-immigrant visa. Do I have to wait to apply for the Green Card after my graduation and changing the visa to H-1B?
A: The F-1 visa is a non-immigrant visa, but it does not mean that a F-1 visa holder is not allowed to apply for the Green Card. A non-immigrant visa holder, such as F-1 and J-1, may change its intent thereafter receiving a nonimmigrant visa.
It is not true that a non-immigrant visa holder must change its visa type to a nonimmigrant visa such as H or L visa, which allows dual intent, before a Green Card petition can be filed. Generally speaking, anyone can file an immigration petition at any time if he or she meets the qualification requirements. But, if your current F-1 visa time is not long enough for you to finish your degree, it is better to wait to file the Green Card application until you have extended your F-1 visa.
Q: If I am not a member of any professional association, organization, or society in my field, may I still apply for an EB-1? If my petition for EB1-EA is unsuccessful, can I apply again in the future?
A: There is no specific requirement that you must be a member of any professional association, organization, or society in order to apply or obtain approval of an EB-1 petition, although in many instances such memberships would help improve chances of your approval.
If your petition for EB1-EA is unsuccessful, you can apply again in the future. A previously rejected petition does not bar you from submitting another petition subsequently, regardless which classification is concerned. However, Unless your circumstance has improved, it is not advisable to simply submit a similar petition again. You will not be able to claim the priority date of the previous petition. But unless the 6 year maximum of your H-1B visa is approaching, losing a priority date is not always an issue, because there is no waiting line for a visa number in EB-1 classifications for most time.
Q: Does an artist or musician qualify for an EB-1? I am not a member of any art professional organizations in my field, but may join by paying a membership fee. Should I join some art professional associations now in order to increase my chances of approval for an EB-1?
A: Yes. Artists and musicians may apply for an EB-1.
You may join some art professional associations now in order to increase your chances of approval for an EB-1. But the evidence that would support an EB-1 petition is membership in an association, organization, or society requiring "outstanding achievement" of its members. If the professional association is relatively easy to join, it may not be a factor in your EB-1 case.
Q: What is a "Request for Additional Evidence"?
A: Sometimes the USCIS is not convinced that the alien petitioning under an EB-1 category has met the burden to prove that an applicant qualifies for the EB-1 category. In such cases, they will typically submit a "Request for Additional Evidence" or "Request for Evidence (RFE)" seeking certain forms of evidence that the USCIS finds lacking. An applicant should take great care to present a strong case, so that it may be approved without a request for additional evidence. Nevertheless, there is no way to predict how a USCIS officer reviewing a particular case will respond, and sometimes even the strongest of cases receive a "Request for Additional Evidence".
It is critical to appropriately and proficiently reply the USCIS issued Request for Evidence; incorrect response of the RFE will directly result in your EB1-Extraordinary Ability petition rejection.