Extraordinary Ability, Outstanding Researcher and Multinational Manager Petitions: EB-1 Options to Bypass PERM, Avoid the Backlog and Get the Green Card

As we have discussed previously, the path to permanent residence in the U.S. can be long, arduous and frustrating. The labor certification application process (PERM) has come under close scrutiny by the Department of Labor, resulting in a substantial uptick in audits and a corresponding increase in denials. Visa backlogs in the third employment-based preference category (EB-3) for people from all countries, and in the second employment-based preference category (EB-2) for individuals born in China and India, mean that the wait for a green card can be years long. The permanent residence process can be daunting, to say the least.

For some professionals seeking green card status, there may be viable alternatives to this lengthy and tenuous process. The first employment-based preference category (EB-1) does not require a PERM application, there are no backlogs, and processing times are relatively short. To bypass the PERM labyrinth and avoid the visa backlog altogether, a foreign national can apply in the EB-1 category as a person of Extraordinary Ability, Outstanding Researcher or Multinational Manager or Executive.

EB-1: Extraordinary Ability

Applicants with "extraordinary ability" in the arts, sciences, business, education or athletics must demonstrate that they meet three of 10 criteria — or provide evidence of a significant one-time achievement along the lines of winning a Nobel Prize or an Olympic medal. Documentation of recognition within the field must be submitted, which often involves letters of support from reputable professionals or experts. Individuals in this category may self-petition or may be supported by their petitioning employer

Although "extraordinary ability" may sound like it only applies to Olympic athletes and Nobel Prize winners, in reality it applies more broadly. High-level employees with significant accomplishments who have been widely recognized for their work outside of their own organizations (in the media, by industry experts or by filing patents, for example) and/or who can demonstrate that something they have done impacted their field broadly (through citations to their work, imitation of their unique business process or as the subject of an article in a well-respected publication) may be able to meet the requirements for "extraordinary ability."

Consider: A financial services vice president who spearheaded a major investment initiative that received press attention and who can demonstrate a pattern of achievement within a well-respected organization through increased company profits and innovation. Extraordinary ability categories covered:

1. Leading role in an organization with a distinguished reputation — her own employer, widely respected in the industry;
2. Commands a high salary compared to others in the field — as determined by local salary surveys; and
3. Published materials about the vice president's work in major media — including articles about her investment initiative and not about her personally.

Consider: An IT Director for a Fortune 500 company who has a Ph.D., has published scholarly and popular articles, and has served on a notable panel evaluating other IT professionals' work. Extraordinary ability categories covered:

1. Been asked to judge the work of others — as part of a panel at a well-known conference or as an editor of a peer-reviewed publication;
2. Published multiple articles in professional publications as part of the IT Director's Ph.D. studies and in his professional role; and
3. Performs a critical role in a distinguished organization as a top IT development strategist.

EB-1: Outstanding Researcher

Applicants in this category must demonstrate that they meet at least two of six categories of recognition and/or achievement in their academic field, and they must be applying in order to perform a research position or tenure-track teaching role in the U.S.

Consider: A pharmaceutical scientist who has filed patents and presented at conferences. Outstanding researcher categories covered:

1. Published articles as part of academic program in scholarly journals;
2. Been asked to serve as an editor of a scientific journal; and
3. Made original contributions to the field through the patent filings.

EB-1: Multinational Manager or Executive

Similar to the requirements of the L-1A visa, the beneficiary must be employed outside the U.S. in a managerial or executive capacity for at least one year in the preceding three years by an affiliate or subsidiary of the petitioning U.S. employer and fill a similar capacity in the U.S. The key evidence for this category is the extent to which the beneficiary supervised professional level subordinates or managed an essential function within the overseas organization and to what extent he will do so in the U.S. This does not apply only to C-level professionals — decision-making authority can be found throughout an organization.

Consider: A functional human resources manager of an overseas office branch who has decision-making responsibility within the human resources function, including budgetary oversight and ability to recommend hiring decisions. Will be coming to the U.S. to manage a similar human resources function, but may not have direct reports.

Conclusion

Top-tier professionals seeking permanent residence may initially shy away from considering applying in the EB-1 category because the evidentiary challenges seem intimidating. Indeed, the criteria demand high performance and achievement, but thinking more broadly about what the EB-1 category encompasses may open more possibilities to get a green card more efficiently.