Overview

Your company wishes to file an Immigrant Petition for a valued employee or the foreign individual may be able to proceed without an employer sponsor.

What is an Immigrant Petition?

Generally, the first step in obtaining permanent residence (“green card”) on behalf of a foreign individual is labor certification. Labor certification is the process of proving that there are no qualified U.S. workers for the position being offered to the foreign individual. If the labor certification application is certified by the Department of Labor, then the U.S. employer must file an Immigrant Petition for Alien Worker (form I-140) in order to obtain an immigrant visa for the foreign individual. In certain employment based (EB) immigrant visa categories, however, labor certification is not required. The Immigrant Petition can be filed by the U.S. employer or the foreign individual can file without an employer sponsor.

Does the Foreign Individual Qualify?

In order to qualify to file an Immigrant Petition, the eligibility criteria of an EB immigrant visa category must be met. There are five EB immigrant visa categories under which the foreign individual may apply each with different requirements. Here, we discuss the EB first preference (EB-1) category.

The foreign individual may qualify for the EB-1 category if s/he is an alien with extraordinary ability in sciences, art, education, business or athletics or an outstanding professor or researcher or a multinational executive or manager.

Extraordinary Ability

The foreign individual must be an alien with extraordinary ability in sciences, art, education, business or athletics which has been demonstrated through sustained national or international acclaim; whose achievements have been recognized in the field through extensive documentation; and who seeks entry into the United States to continue work in the area of extraordinary ability.

To demonstrate sustained national or international acclaim the foreign individual must provide evidence of a one-time achievement (i.e. Nobel Prize) or document any 3 of the following:

  • Receipt of lesser nationally or internationally recognized awards or prizes.
  • Membership in an association in the field for which classification is sought which requires outstanding achievement of their members.
  • Published material about the foreign individual in major trade publications or other major media.
  • Participation as a judge evaluating the work of others in the field.
  • Evidence of original scientific, scholastic, artistic, athletic or business related contributions of major significance.
  • Authorship of scholarly articles in the field.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

Outstanding Researcher or Professor

To be considered an outstanding professor or researcher the foreign individual must be recognized internationally as outstanding in a specific academic area; have 3 years of teaching or research experience in the academic area; and seek entry into the United States for a tenure (or tenure track) teaching position with a university or institution of higher education or a comparable position at a university or institution of higher education to conduct research or a comparable position to conduct research with a private employer (if it employs at least 3 full time researchers and the department, division or institution has achieved documented accomplishments in an academic field).

To demonstrate that the professor or researcher is recognized internationally as outstanding in a specific academic area the foreign individual must document at least 2 of the following:

  • Receipt of major awards or prizes for outstanding achievement.
  • Membership in an association that requires outstanding achievement.
  • Published material in professional publications written by others about the foreign individual’s work.
  • Participation as a judge evaluating the work of others in the field.
  • Evidence of original scientific research.
  • Authorship of scholarly books or articles in the field.

Multinational Executive or Manager

To be considered a multinational executive or manager the foreign individual must have been employed outside the United States for at least 1 year within the past three 3 years preceding the filing of the Immigrant Petition by the parent, branch, affiliate or subsidiary of the United States company and the foreign individual seeks to enter the United States to continue service to that firm or organization. The ‘1 of 3 year’ requirement can be met if the foreign individual is in the United States for more than 3 years if s/he is working for the same parent, branch, affiliate or subsidiary in the United States and was employed for at least 1 of the last 3 years by the company outside the United States before entering the United States in nonimmigrant status (i.e. L-1A).

How Does the Foreign Individual Acquire an Immigrant Visa Number?

In order to obtain an immigrant visa number an Immigrant Petition and a letter in support along with required documentation is filed with the USCIS Service Center. Once the Immigrant Petition is approved by the USCIS, it is forwarded to the National Visa Center (NVC).

Extraordinary Ability

A certified labor certification is not required and the extraordinary ability foreign individual may self-petition (a U.S. employer or job offer is not required to file the Immigrant Petition). In this instance, the foreign individual files an Immigrant Petition, a letter in support and the required documentation.

Outstanding Researcher or Professor

A certified labor certification is not required; however, a job offer is required. In this instance, the U.S. employer files an Immigrant Petition, a letter in support and the required documentation.

Multinational Executive or Manager

A certified labor certification is not required; however, a job offer is required. The U.S. employer files an Immigrant Petition, a letter in support and the required documentation.

How Does the Foreign Individual Acquire an Immigrant Visa?

Once the immigrant visa becomes available, the NVC requires that the foreign individual file an immigrant visa application along with required documentation. The NVC performs a background check on the foreign individual. Once the immigrant visa application and documentation are received and the background check is complete and the results are satisfactory, the NVC forwards the petition and all other material to the United States consulate nearest the foreign individual’s foreign residence. The United States consulate conducts an interview and issues the immigrant visa allowing the foreign individual to legally enter the United States to live permanently. Upon issuance of the immigrant visa, the foreign individual must enter the United States within 6 months. After entry, the foreign individual will be issued a permanent residence card allowing them to live permanently in the United States.

If the foreign individual entered the United States on a nonimmigrant visa (i.e. L-1A visa) and is currently in the United States legally, s/he can file an application for permanent residence, travel document and work permit with the USCIS Service Center. The USCIS will issue receipts for each application then schedule the foreign individual to be fingerprinted at the closest USCIS District Office. The USCIS performs a background check on the foreign individual. Once the background check is complete and the results are satisfactory, the USCIS approves the application for permanent residence allowing the foreign individual to live permanently in the United States.

Additional Questions?

If you are unfamiliar with what is required, you may wish to take a moment to learn more about the employment (immigrant) visa process, to review the requirements for the employment (immigrant) visa, the associated immigrant visa fees and the timelines for the employment (immigrant) visa process.