On Jul 13 2022 by Staff

Podcast Episode 28: What is EB-1 Immigration?

Klasko’s EB-1 immigration attorney team recently sat down to discuss the basics of EB-1 Immigration in an episode of Statutes of Liberty: An Immigration Podcast. Here is a transcription of the discussion between Anu Nair, Allie Dempsey, and Nigel James. Read on and listen in as they discuss the ins and outs of EB-1 immigration and what it takes to qualify and apply for an EB-1 visa.

Anu Nair: Hi everyone. Welcome to our podcast episode “What is EB-1 Immigration?” and how to prepare an EB-1 petition. My name is Anu Nair. I’m a partner here at Klasko and I am joined by Allie Dempsey, who is our senior associate, and Nigel James, who is an associate on the EB-1 team as well.

So, let’s get started. Allie, I’m going to turn to you. Can you take us through a brief overview of what is this EB-1 visa? Who can apply for the EB-1 visa?

Allie Dempsey: Sure. Thank you so much, Anu. Generally, in EB-1 immigration there are three broad categories that we look at. There’s an EB-1A, which is for individuals of extraordinary ability. There is an EB-1B, which is for outstanding researchers and professors. And also, an EB-1C, which is for certain multinational managers and executives of international corporations. Today, we are going to focus largely on the EB-1A category and talk a lot about what the pros and cons of that category look like. And how you can prepare yourself to qualify under that extraordinary ability standard.

The clearest fit for an EB-1A is largely going to be academics and scientists because of the way the regulations are structured. But the EB-1A is by no means limited to scientific individuals. It’s very commonly used as well for individuals in the arts as well as in business. And can generally apply to anybody in any field who can show that they are one of a small handful that’s at the very top of the field and that they’ve sustained some level of acclaim.

The regulations are actually structured to allow for consideration of comparable evidence, which is a really broad bucket that allows individuals from a multitude of fields to consider this immigration option.

Anu: So, Nigel, does someone have to have an employer ready and a job opportunity in hand in order to be able to apply for the EB-1?

Nigel James: So, for the EB-1A extraordinary ability petition, you don’t need to have an employer sponsor you and you can file a petition on your own behalf. However, for the EB-1B outstanding researcher or professor, you do need an employer to sponsor you. Additionally, for this category, your employer has to be sponsoring you for a position that’s tenure-track for teaching or a permanent full-time research position. Additionally, your employer also must document that they have at least 3 full-time researchers.

Anu: So, one of the benefits you mentioned right now is that you don’t need an employer that’s sponsoring you, which can be – especially for the EB-1A – really helpful for a lot of foreign nationals who are either overseas and don’t have an immediate employer or are still looking to pursue that opportunity. What are some other benefits for EB-1 where someone might want to choose that over the more common categories for EB-2 or EB-3 PERM-based immigration options?

Allie: The largest benefit of the EB-1A is that it generally doesn’t have a backlog under the visa bulletin, which governs how US green cards are allocated by the US government. There can be some delays in EB-1 migration for certain nationalities that have high rates of migration to the US. So sometimes, historically, we have seen backlogs in EB-1 for Indian and Chinese nationals for instance. But even if there is a backlog, the EB-1 is typically much faster to get a green card in hand when compared to the other preference categories. Going back to what Nigel was saying, the ability to self-sponsor the EB-1A is also a tremendous benefit because it allows for significant flexibility in your employment decisions while you are pursuing the green card. The one big consideration that we always emphasize though is that even if you want that flexibility, you still need to have some plan to continue in your field of extraordinary ability. So, while there is some flexibility in the EB-1A, it’s not limitless always.

Anu: So, we’ve gone through what the EB-1 visa is, who can sponsor you, whether you can self-sponsor, and why it’s beneficial or why a lot of people prefer choosing this option over some of the other categories that are available. So, Nigel, I’m going to turn to you to take us through the criteria for actually applying for these petitions.

Nigel: Sure, so one part of the EB-1 analysis is determining whether you meet at least 3 out of 10 regulatory criteria. The regulatory criteria depend on your field, and I’ll go through the common ones depending on your field or not. So for doctors, researchers, and professors, the most common criteria that we see individuals meeting or going for are going to be original, scholarly contributions based on your research, authorship of scholarly articles, and also judge of the work of others in your field, which is primarily based on things such as peer review.

Artists and performers, we see things such as original artistic contributions to their field, performance of a leading critical for a distinguished organization in the arts, and then also commercial success in the arts. So, this is things such as ticket sales and things of that nature.

Lastly, for business professionals, we usually see these individuals go for original business contributions, commanding a high salary or remuneration compared to others in the field, which takes into account your annual salary, your bonus, relocation benefits, etc. And lastly for performance or leading a critical role for your distinguished organization.

So, for the second part of the analysis, USCIS conducts a final merits determination. So, after reviewing and confirming you satisfy at least 3 out of 10 regulatory criteria, this final merits determination is for USCIS to review the submitted evidence in its totality to determine that you are part of the top percentage of individuals of your field, as Allie mentioned. And that you’ve continued to sustain national or international acclaim in your field. So, this puts a lot of emphasis on the quality of the evidence which is more important than the quantity. So I know I only spoke about 3 common criteria for each field, but the full list of criteria is going to be included in the show notes of this recording.

Anu: Now that we’ve gone through the common criteria, what can an applicant do to increase their chances of approval?

Allie: There are likely a myriad of ways that you can improve the overall strength of your case depending on the nature of your field and your own specific career. However, I’m going to quickly highlight three areas where we commonly see room for improvement. The first is just to increase your professional engagement with your field, whatever the case may be. So that can be academic service, it can be participating in business organizations or artistic groups. Again, kind of whatever the nature of your field is, putting yourself out there and really building a reputation and standing within a professional group. We do recommend that you be specific and targeted when developing this part of your profile, not joining every organization that you can possibly join. But really choosing a few and working to develop your standing and your achievements within those specific entities.

The next thing that we always encourage is to publish and present more. Again, this is not limited to academic-type profiles. Publishing and presenting can be in industry or trade venues as well as in academic journals. But generally, getting yourself out there. And these are also really good venues for developing documentation in support of an EB-1. So we always want to be mindful of having the paper behind the achievements to really demonstrate to Immigration what you’ve done in your field.

As Nigel said, for both of these areas of improvement, we are looking at the quality of what you’re doing not just the quantity. So again, not joining every single group, but really focusing on where you can build your profile.

Finally, one of the most common issues we see is individuals who have done wonderful work in their field, but simply don’t have the documentation to substantiate those achievements. So, we always want to encourage clients and encourage individuals to build up the documentation in support of their work. Save records. Keep them with you as you move from job to job. Emails, and other documentation that support everything that you’ve done, so when we need to show immigration your work, we have the means to do so.

Anu: Thank you, Allie. We actually dedicated a full webinar to increasing the chances of your EB-1 approval. So, I do recommend that if you’re interested in EB-1 and looking at those options, to check out that webinar. We’ll also include a link to that as well.

So finally, if a client is saying, “Yes, it looks like I’m ready to go.” Nigel, how would they go through that process in getting their application filed? What does that look like?

Nigel: First, the gathering of the documentation is largely going to depend on the client. The documents that you want to gather, as Allie mentioned, are going to be in support of the specific criteria you’re going for, such as peer review to judge the work of other, you know, scholarly publications, and PDF copies. Things of that nature, which will largely depend on the client gathering those materials for the attorney. Second part, your attorney will help you compile the support letters for your petition, as well as the cover letter explaining to the adjudicator how you meet the legal requirements for the EB-1A category.

So, for example, at Klasko we have a specialized team of attorneys and a team of technical writers to help guide you through that process. So, for each case, there is one dedicated attorney and one dedicated technical writer. The technical writers are critical in taking the highly technical information and explaining it to a lay person. This is important because the USCIS adjudicator won’t be an expert in the field. So, they will need to have the material explained to them in a way where they can pick it up and immediately explain it while reading the petition.

Additionally, one way to decrease the chances of any particular issues with the EB-1, after filing, would be using premium processing strategically. I know Anu and Allie have some thoughts about premium processing on how to use that to maximize the chance of success. So one of the things that you can do is to use it to work for any particular expiring status concerns or age-outs for children who are turning 21. Any additional thoughts, Anu, or Allie?

Anu: Yes. I was going to say unless there’s really high chance of success and unless there’s an age-out or status issue, I generally don’t like to use premium processing. I like to use it strategically because if there is a request for evidence, at that stage, we can decide if that request for evidence was reasonable. If it wasn’t, we can use the premium processing to potentially get that case in front of another adjudicator and therefore have two officers basically having taken a look at it, and maybe having the second officer have a more positive factor. So that’s how I like to use premium processing, but again, for certain circumstances, I think it makes sense to do premium processing, but it is something that should be an ongoing discussion with the attorney as you are putting together the documentation.

I don’t like making that assessment at the outset, which is when the clients want to know. I usually only make that assessment once everything is put together, and I can see what that full petition looks like. And then use it strategically.

Nigel: So, with premium processing, you can get the adjudicator to review the petition within 15 or 30 calendar days, depending on the category. For the EB-1A category, it would be 15 calendar days which includes weekends and holidays. Allie, did you have any additional thoughts on premium processing?

Allie: The other big thing that we always want to be mindful of when we are preparing these types of filings is just the volume of documentation that we are submitting to immigration. So, if you’re submitting a thousand pages of evidence to immigration, but simultaneously asking that officer to review it in 15 days, we always have to counsel the client on what we are asking that immigration officer to achieve in a very limited window. So that’s another reason we often counsel against the premium processing unless there is an immigration need. Because we are really putting the immigration officer under the gun to make a decision on a voluminous filing in a very short period of time. And at the end of the day, you want the immigration officer to be friendly to your case. That is very important throughout the process.

Anu: You’ve explained the criteria to the client, what the requirements are, and they realize that EB-1 just may not be a good fit for them. They just simply don’t meet those criteria. Are there any other options for them, than going through the PERM process?

Allie: Yes. The most common fallback to the EB-1A is an EB-2 National Interest Waiver. Similar to the EB-1A, the NIW – as it’s known – can be self-sponsored. So, it has a lot of the same flexibility as an EB-1A. But at a slightly different level in terms of the final adjudication. Because it’s a lower preference category, it’s the EB-2, not an EB-1, there are some challenges for certain nationalities. Individuals who are from India and China will face significant backlogs in the EB-2 as compared to EB-1. Even for those individuals though, the national interest waiver can be a good tool because if you’re not ready for an EB-1, the national interest waiver can allow you to establish your place in the backlog or the waiting line for the green card to help your overall process of immigrating to the US down the road.

When we look at a national interest waiver, we really do need to focus on the national interest of the work. It’s right there in the name. We want to be sure that the impact of your work is going to be felt outside of your immediate institution or your immediate geographic area. We really are looking for some level of national impact. A real classic case is a biomedical researcher or somebody in academia, but we’re really not limited to that. Similar to an EB-1A, the national interest waiver can be used in a multitude of fields, so long as we can show that national benefit to the United States.

Finally, there was recent guidance really emphasizing the importance of STEM education in the United States. And that has been specifically incorporated into the adjudications of national interest waivers. So, if you are somebody who has an advanced STEM degree, that can be a huge positive factor for the national interest waiver and make it a real strong alternative to the EB-1.

Anu: One thing that I try to tell my clients is that you don’t have to seek the hardest category. So, if you are eligible for both the EB-1 and the national interest waiver, unless there’s a reason – so for example, as Allie mentioned you’re an Indian or Chinese national that has the potential for a backlog or does have a backlog, it doesn’t make sense to always try to get the hardest categories. So, you do want to try to go for the low-hanging fruit here and get the category that’s going to get you your green card the fastest. Right now, national interest waiver does not have premium processing, which is one of the reasons why I think a lot of people tend to prefer EB-1. But it looks like some time this fiscal year, they are supposed to start premium processing for the national interest waiver. If deciding between the EB-1 and the NIW, if the attorney’s saying that the NIW is probably going to be easier, don’t think that you have to go for the EB-1 and prove that you’re at the top of your field because regardless, you’re still going to get your green card if you go the EB-2 national interest waiver route.

So, any final thoughts from Allie or Nigel about tips and tricks for people for the EB-1 category or anything that you wanted to recap?

Nigel: I think one tip is to make sure any work that you’re doing to document that your achievements are in your name. So, be careful trying to use any materials that you helped an advisor, let’s say for your Ph.D. program or a friend with peer review, or anything of that nature. Just make sure that it’s in your name, and that’s it’s your documented achievement.

Anu: That’s a great tip. So, thank you, Allie and Nigel, for your time today.

To learn more about your specific case and if you are a candidate for EB-1 Immigration or an EB-2 National Interest Waiver, schedule a consultation with one of our dedicated EB-1 immigration attorneys.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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