Employment Based First Preference

The employment based first preference applicants are exempt from obtaining a labor certification. The employment based first preference includes persons of extraordinary ability, outstanding professors and researchers and certain managers and executives of multinational corporations.

Although a labor certification is not required, outstanding professors and researchers and multi-national managers and executives must have an offer of employment. This means that if you are filing as an outstanding professor or researcher, your employer will be filing the I-140 visa Petition. If you are filing as an alien of extraordinary ability, you are filing the I-140 Petition.

Extraordinary Ability and Outstanding Researchers and Professors

No matter if you are filing as an alien of extraordinary ability, an outstanding professor or researcher or seeking a national interest waiver under the employment second preference which is discussed in a separate section, you should begin gathering the following information:

1. Documentation of all awards received for excellence in your field. Obtain as much information as possible regarding the selection criterion and relevant information such as how many individuals were nominated. It is important to be able to articulate the importance of this award;

2. Documentation of membership in associations which require outstanding achievements. Don’t submit evidence of associations which are simply “dues paying organizations:

3. Published material about you in professional or major trade publications or media reports;

4. Evidence of participation either individually or as a panel judging the work of others;

5. Evidence of scientific scholarly, artistic, athletic or business related contributions of major significance. Be prepared to articulate how your contributions have either added to work or changed others work in the field. Be prepared to discuss practical applications of your work;

6. Evidence of scholarly articles in the field in professional or major trade publications. Be prepared to discuss the quality of the publications;

7. Evidence of the display of your work at conferences or exhibitions;

8. Evidence that you have played a leading or critical role for organizations that have a distinguished reputation;

9. Evidence you have commanded a high salary;

10. Evidence of commercial successes.

It is important to develop a strategy of how to present the evidence to best demonstrate that you meet the requirements set forth in the regulations. You will not have evidence to present in each of these categories. Decide in what categories you can provide evidence. The quality of your evidence is extremely important. Do not submit evidence which would detract from your claim. We suggest three to five letters from independent experts in the field. This would be in addition to a letter from your employer. Do not obtain letters that talk about your character or that you would be a good citizen. It is important that you have letters from experts both here in the United States and abroad. These individuals should provide their CV or a short biography qualifying them as an expert. Testimony from professors, co-workers or collaborators are viewed as self serving and not useful to you. The letters should discuss your specific achievements and the significance of your contributions to the field.

EXTRAORDINARY ABILITY

The regulations define extraordinary ability as a level of expertise indicating that they are one of a small percentage who has risen to the very top of their field. The regulations require that you demonstrate that you have sustained national or international acclaim and that your achievements have been recognized. You must either produce substantial evidence in three of the above criterion or a one time achievement such as a major international award. Simply satisfying three categories does not make you an alien of extraordinary ability.

OUTSTANDING PROFESSOR AND RESEARCHERS

The regulations define outstanding professor or researcher as one that is internationally regarded for excellence in a particular academic field and have at least three years of research or teaching experience in the field. You must produce substantial evidence in two of the above criterion.

It is also important that if conducting research that the employer have at least three full time persons in research activities and that the employer has documented research accomplishments. If you are applying as an outstanding professor you must demonstrate that you are working in a tenure track position.

The attorneys at Schoener & Kascavage will review with you every classification for which you may be eligible. We will evaluate your strengths and weaknesses to determine the classification which we believe provides the best chance of success for you. We will assist you in preparing the required evidence. We will customize a Memorandum which articulates how and why your evidence meets the requirements of the regulations. We will provide case management services including the extension as required of your underlying status and that of your dependents. We will not file an application that we do not believe will be approved.

MULTINATIONAL MANAGERS AND EXECUTIVES

The I-140 in this case is filed by a multinational organization. The Petitioning company must have offices in the United States and at least one other country. A qualifying organization can be the same company in the United States and abroad, a parent, affiliate with common owners or a subsidiary.

You must have worked for the qualifying organization abroad for at least one year in an executive or managerial capacity in the three years preceding your admission to the United States. The term manager or executive are defined specifically in the regulations. First line managers do not qualify for this classification.

Again the quality of the evidence is of extreme importance. Both the L-1 visa and the EB-1 multinational manager or executive have come under scrutiny in an effort to preserve jobs for American workers. It is extremely difficult to obtain this classification from small companies unless the application is well documented. The type of evidence to document this application would include the following:

1. Evidence of the relationship between the foreign company and the U.S. company. This would include ownership documents;

2. Corporate flow chart which lists all affiliated companies;

3. Organizational chart which demonstrates the position within the company;

4. Promotional materials by both companies demonstrating the companies are actively engaged in the provision of goods and services;

5. Detailed job description which includes position responsibilities and duties;

6. Be prepared to discuss the following points:
A. Number of individuals and job titles of those supervised;
B. Discretionary authority exercised;
C. Budgetary authority;
D. What authority do you have over those supervised;
E. To whom do you report;
F. How do you participate in establishing goals, policies or other authority over what is managed;
G. Contractual authority;
H. Strategic decision making;
I. Effect on company’s operations or profits.

7. Tax returns.

The attorneys at Schoener & Kascavage will evaluate the evidence and assist you in determining what evidence will best result in the approval of your case. As in other applications we will not file a case unless we believe it will be approved.

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