Employment Based

What we can do to assist you with your EB1 petition?

We will work with you to analyze your case and give you an honest assessment of your chances. If you decide to move forward, we will assist you in gathering all required evidence, including drafting proposed reference letters for outside experts. We will then assemble all of the evidence and prepare a detailed presentation for the USCIS. Upon your review and approval, we will then file it with the USCIS and follow through on all inquiries until a decision is reached.

(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,

(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and

(iii) the alien’s entry into the United States will substantially benefit prospectively the United States.

(i) the alien is recognized internationally as outstanding in a specific academic area, 203(b)(1)(B)

(ii) the alien has at least 3 years of experience in teaching or research in the academic area, and

(iii) the alien seeks to enter the United States–

(I) for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,

(II) for a comparable position with a university or institution of higher education to conduct research in the area, or

(III) for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

An official academic record showing that the alien has an United States advanced degree or a foreign equivalent degree.

An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.

The USCIS insists that for the alternate degree/experience qualification, the foreign degree must be a four year bachelor’s degree. They are unwilling to accept combinations of study programs that equal four years of study. Rather, they insist that the petitioner show that the beneficiary received a four year bachelor’s degree.

The USCIS, in its Adjudicator’s Field Manual, in Chapter 22.2, instructs adjudicator’s as follows with respect to the actual job offered in EB2 cases:

The petitioner must demonstrate that the position, and the industry as a whole, normally requires that the position be filled by an individual holding an advanced degree. In this regard, the key factors are not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree, but rather that a combination of foreign degrees or credentials:

• Meets the minimum education requirements for the position
• Meet the definition of an advanced degree at 8 CFR 204.5(k)(2) .

Most often, the CIS adjudicators will look to the job as it is described in the PERM application to determine whether it actually requires knowledge equal to that customarily gained through study leading to an advanced degree. Never assume that simply because the PERM application states that an advanced degree, or its equivalent, is the minimum requirement for the job that the CIS will accept this blindly. The Petitioner must establish affirmatively the requirement for the advanced degree.

Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2):

Qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

Qualified immigrants who hold baccalaureate degrees and who are members of the professions.

Other qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. 203(b)(3)(B) Limitation on other workers.–Not more than 10,000 of the visas made available under this paragraph in any fiscal year may be available for qualified immigrants described in subparagraph (A)(iii).

Irrespective of whether a foreign labor certification is required, all employment based immigrants must file, or have filed on their behalf, an immigrant preference petition — form I-140. Approval of this petition is significant for several reasons: It perfects the applicant’s priority date; It confirms the applicant’s immigrant preference classification; and it makes the applicant eligible to apply for immigrant status as soon as his or her priority is “current.”

Unless and until an I-140 petition has been approved, the beneficiary of the petition only has an expectation of a specific priority date. After the I-140 petition has been approved, the priority date vests and the employee “owns” it forever, unless it is revoked by the USCIS for fraud or mistake. If an employer withdraws an approved I-140, the beneficiary remains entitled to that priority date for all subsequently filed I-140 petitions for any job, by any employer, and in any of the first three employment based preferences.

In many cases, a person with an established employment based preference priority date (such as an EB3 beneficiary) will want to “upgrade” to a higher preference classification. This may be possible, depending upon the unique facts and circumstances presented.