Frequently Asked Questions about EB-1B Visas

Q: What does EB-1 stand for? 

A: It stands for employment-based, first-preference immigration visas. 

Q: What is the EB-1B category? 

A: EB-1B is a subcategory of EB-1 visas reserved for outstanding researchers and professors.

Q: What are the minimum documentary requirements for EB-1B petitions? 

A: An EB-1B petition consists of Form I-140, Petition for Alien Worker, and supporting documents that show that the beneficiary meets EB-1B criteria. The specific documents required depend on which criteria a petitioner is attempting to satisfy.

Q: Who has the burden of proof in an EB-1B petition? 

A: The burden of proof in EB-1B cases rests solely with the petitioning employer and the representing attorney.

Q: Who is the petitioner in an EB-1B case?

A: The employer is the petitioner. This means the outstanding researcher or professor alien is the beneficiary. Employer sponsorship and support throughout the petitioning process is necessary for EB-1B cases.

Q: If I have the choice between filing an EB-1A or an EB-1B petition, which petition should I choose? 

A: It depends on your individual circumstances. If you meet both sets of criteria, we’d generally recommend that you file an EB-1A petition because it will not bind you to any particular employer and you’re allowed to file on your own behalf. An EB-1B petition requires a job offer and sponsorship from a petitioning employer, and unanticipated events like a job change while your petition is pending may affect your EB-1B application. Of course, your particular situation may differ depending on your individual facts and circumstances. Please consult with one of our experienced immigration attorneys for more information. 

Q: Can I file both an EB-1A and an EB-1B at the same time? 

A: Yes. In fact, many of our clients opt to file both petitions simultaneously. Oftentimes, one petition will be approved before the other. And if one petition is denied for some reason, then obviously there is still a chance that the other pending petition will be approved. 

Q: I’m a Ph.D. student. Can I still apply for an EB-1B? 

A: In theory, yes. However, in reality, it may be very challenging for a Ph.D. student or even a postdoctoral researcher to receive a permanent job offer teaching or researching.

Q: How many publications should I have in order to meet EB-1B requirements? 

A: There is no specific minimum number of publications you are required to have. That said, having at least some publications in major, widely circulated scholarly journals meets one of the criteria of an EB-1B visa.

Q: What is a permanent job offer? 

A:  A permanent job offer is any employment without a fixed termination date. Indeed, most jobs are “permanent jobs.” Neither salary nor job title is of any relevance when determining what qualifies. If this definition isn’t clear, check out the examples below to illustrate what does and doesn’t adhere to the definition.

Example 1 
Amy has been offered a job as a waitress at Pho Que Huong. The owner has told Amy to begin work next Monday at a starting wage of $7.25 per hour (plus tips).

Does Amy have a permanent job offer?
Yes, since the owner has not given her a defined termination date.

Example 2
Tarek has been hired by IBM as a contracted research scientist for a period of five years at the rate of $120 per hour. 

Does Tarek have a permanent job offer?
No, because his position has a predefined termination date, i.e. five years from his hiring. 

Example 3
Ayah is a postdoctoral researcher at Stanford University.

Does Ayah have a permanent job offer?
Generally, no, unless otherwise explicitly stated in her contract. Most postdoctoral research positions last two years.

Q: I received a permanent job offer from my employer. Is my employer required to employ me permanently? 

A: No. Most jobs involve an employment relationship that is considered “at will.” In practice, this means that either you or your employer can terminate the employment relationship at any time for any, or for no, reason at all. 

Q: What should a job offer letter for a permanent position contain? 

A: The offer letter should contain the following basic information: your job title, duties, and salary; language stipulating that the job has no fixed end date; and your future employer’s signature.

Q: That makes sense, but I’d like to still see a sample job offer letter. Do you have any?

A: We knew you’d ask; click here.

Q: I plan on staying with my current employer for only a few more months. Can I still file an EB-1B petition? 

A: Yes, you can. However, be sure to work for the employer that sponsored your EB-1B petition for at least 180 days. Why is this the case? Pursuant to the final rule regarding portability that took effect in January 2017, a foreign national whose I-140 petition has been approved for at least 180 days will not have his or her petition automatically revoked in the event the petitioning employer goes out of business or withdraws the petition. After 180 days, if an employee wants to change jobs, then he or she is allowed to retain the originally approved I-140’s priority date. In addition, if such an employee has filed an I-485 application that has been pending for at least 180 days, then he or she is permitted to use the old I-140 petition for another job, provided this new job is in the same or similar occupational classification as the old. 

Q: What if I lose my job while my EB-1B petition is pending? 

A: Your petition could still be approved, but your adjustment of status may not be. As long as you maintain your job for 180 days after filing, your status should be safe. 

Q: I would like to file an EB-1B petition, but I plan to move to a different state in three months. What will happen to my petition after I move? 

A: Nothing. Your petition will remain active, and your move will have no effect on your pending application, provided that you continue working for the employer that sponsored your EB-1B. U.S. Citizenship and Immigration Services (USCIS) will contact your attorney with its decision on your case. Note, however, that within 10 days of your move, you’ll still need to file an AR-11, Alien's Change of Address Card, which serves to notify USCIS of your new address.

Q: Do I need to live in the U.S. to apply for an EB-1B? 

A: No. Any alien, regardless of where he or she resides, can apply for an EB-1B petition, provided, or course, that he or she meets the EB-1B requirements . That said, it may be challenging for an alien who resides outside the U.S. to receive a permanent employment offer for a teaching or research position with a U.S. employer. 

Q: Besides an EB-1B, what other employment-based immigration petitions are available that do not require a labor certification? 

A: Neither an EB-1A nor an NIW petition requires a labor certification. (To learn more about those visa categories, click on the hyperlinks.)

Q: What are the similarities between EB-1B and EB-1A visas? 

A: Both petitions are in the employment-based, first-preference visa category. Neither requires a labor certification. Additionally, premium processing is available for both applications. For more information on the similarities between EB-1B and EB-1A petitions, click here.

Q: What are the differences between EB-1B and EB-1A visas? 

A: While EB-1B requires employer sponsorship and a corresponding job offer, EB-1A requires neither. Further, EB-1B beneficiaries need to have at least three years of relevant work experience, while no such requirement exists for EB-1A applicants. Ultimately, a successful EB-1A petition hinges on a higher standard of achievement relative to that required for an EB-1B. For more information on the differences between EB-1B and EB-1A petitions, click here.

Q: What are the similarities between EB-1B and NIW petitions? 

A: Neither application requires a labor certification.

Q: What are the differences between NIW and EB-1B?  

A: EB-1B visas are a subtype of the employment-based, first-preference visa category. NIW applications are in the employment-based, second-preference (EB-2) visa category. While there’s currently a visa backlog for successful NIW applicants who were born in India and China, immigrant visa numbers are generally available to successful EB-1 petitioners, regardless of nationality. This isn’t a hard-and-fast rule, however. For three times in a recent 10-month stretch – August 2016, September 2016, and June 2017 – the EB-1 category experienced a retrogression, impacting beneficiaries from mainland China and India. Given the quantity of applicants from both countries, this previously rare occurrence may become a trend in the years to come.

Other differences involve premium processing, which is not available to NIW applicants, and the standard of achievement required for each petition. Generally speaking, EB-1Bs require a higher standard, while NIWs are considerably more fluid in what measures of achievement are likely to merit approval.

Q: I’m choosing between an EB-1B and an NIW. Which petition would you recommend? 

A: You should always keep in mind that filing both an NIW and an EB-1B petition at the same time is an option. Bear in mind that they have different standards and criteria. The EB-1B category requires a very high standard of achievement and a permanent teaching or research position. Therefore, for those aliens who have concrete evidence establishing their achievements and have secured a permanent research or teaching job offer, filing an EB-1B petition is generally the better choice. On the other hand, the NIW category offers more flexible and fluid criteria. For those aliens who do not have hard evidence of high achievement in their field and/or a permanent job offer from a future employer, filing an NIW petition is generally a good choice. 

Q: If I have a labor certification pending, can I still apply for an EB-1B? 

A: Yes. They can be filed independently since they’re unrelated. The labor certification process is handled by the U.S. Department of Labor (DOL), whereas USCIS handles EB-1 petitions. If your labor certification is ultimately denied, then you still have a chance of getting your EB-1B petition approved. 

Q: If my labor certification was denied, can I still petition for an EB-1B? 

A: Yes, assuming you would otherwise qualify for an EB-1B. The standards for an EB-1B petition and a labor certification are very different. Labor certifications seek to determine whether there is a lack of available U.S. workers with minimum qualifications for a particular job. In contrast, EB-1B applications center on proving that intending immigrants are “outstanding” researchers or professors.

Q: Is it possible to file two petitions, such as an EB-1B and NIW, at the same time? 

A: Yes. Several of our clients choose to file two Form I-140 petitions simultaneously. (In fact, many file three I-140 applications at the same time!) There is nothing stipulated in immigration law that prohibits multiple filings. In our view, statistically speaking, multiple concurrently filed petitions increase the overall probability you’ll win approval.

Q: Is there any negative impact to filing EB-1B and NIW petitions at the same time? 

A: Not at all.

Q: In the context of an EB-1B petition, what is a letter of recommendation? 

A: It’s a letter written by an expert in the alien's field or by some otherwise authoritative person in an allied or supporting field. The letter discusses the abilities and accomplishments of the alien seeking an EB-1B. In terms of the documentary evidence needed in an EB-1B petition, letters of recommendation play a critical role.  

Q: From whom should I obtain my letters of recommendation? 

A: Recommendation letters should be written by experts or scholars in your field. Usually, our clients ask their former professors, supervisors, coworkers, or peers they’ve met at meetings or conferences. We recommend asking people who are not too personally familiar with you since such individuals are more objective in their testimony about you. Ultimately, though, anyone who knows and can speak to your work whether directly or indirectly and who has expertise in your field is the sort of person you would want to write a letter of recommendation for your application.  

Q: Does your firm provide sample of letters of recommendation? 

A: Yes, and our samples are tailored to our clients’ unique fields. 

Q: How many recommendation letters should I obtain?

A: While there is no specific number set forth by the USCIS, we generally include five to seven letters of recommendation in our EB-1B petition packages. 

Q: What information should be included in the recommendation letters? 

A: Recommendation letters are among the primary supporting evidence in your petition. They should include the writers' qualifications (in order to demonstrate why they’re eligible to speak to your accomplishments and abilities), as well as a discussion of your achievements, awards, publishing record, society memberships, etc. Most importantly, the letters should link your candidacy for an EB-1B visa to the criteria required.

Q: Obtaining letters of recommendation will be difficult for me. Are these letters really that important? 

A: If you can provide clear evidence that you fulfill other criteria for an EB-1, you may not need any letters of recommendation. For most EB-1 applicants, however, letters of recommendation are necessary to prove that you meet the stipulated requirements. 

Q: My professors are very busy, and I hate to bother them about writing recommendation letters. What should I do? 

A: We understand that letters of recommendation can be time-consuming and difficult to write. Professors are oftentimes too busy to write these letters themselves, but we’ve found that they’re happy to review, modify, and sign a draft letter provided to them by the candidate. Our attorneys can review and edit these drafts, which we’ve compiled in a database for our clients, to ensure that they include the appropriate language and meet EB-1B requirements. 

Q: My supervisor is unwilling to write a strong letter of recommendation for me. Will that doom my chances of getting my EB-1B application approved? 

A: A successful EB-1B petition doesn’t hinge on one recommendation letter from one specific person, your supervisor included. If you obtain letters of recommendation from other experts to support your EB-1B claim and the totality of your evidence is compelling, your case may still be successful. However, as a practical matter, if your supervisor is not willing to recommend you, it might be difficult to get your employer to sponsor you for an EB-1B petition in the first place.

Q: Can letters of recommendation included in an NIW petition be used for an EB-1B petition? 

A: Since EB-1B and NIW have different standards, recommendation letters are likely not interchangeable between the two types of petitions. While we usually suggest our clients obtain a set of letters of recommendation for each application, the letters can still come from the same pool of recommending experts or supervisors.

Q: Who is legally defined as my employer for the purposes of an EB-1B petition? Is it my supervisor, my department chair, or my university? 

A: Your employer is the legal entity that pays your salary every month. Take a look at your pay stub: your employer’s name will be listed as the entity issuing the check. For example, say a certain Dr. Mabruk works for a Professor Muller in the Department of Mathematics at Stanford University. Stanford University—not Professor Muller and not the Math Department—is Dr. Mabruk’s employer.

Q: Who can sign on behalf of my employer on my EB-1B documents? 

A: Usually, the HR director, international office director, or a vice president is authorized to sign on behalf of an employer. Sometimes, another director or dean may also be able to sign on the employer’s behalf. 

Q: Once filed, how long does it take USCIS to render a decision on a case? 

A: It depends. The quickest turnaround for approval we’ve experienced for an EB-1B petition was two days. Generally, however, EB-1B processing takes about six months. Premium processing, which guarantees processing within 15 days, is an option, and so if you and your employer are looking to speed up the process and your employer doesn’t mind spending an extra fee, then this service might be for you.

Q: What is my EB-1B priority date? 

A: Your priority date is the date USCIS receives your EB-1B petition.

Q: My friend and I have the same credentials, and her EB-1B petition was recently approved. Is it safe to assume my EB-1B petition will also be approved? 

A: Not necessarily. Each case is different and adjudicated by an individual USCIS officer. Though your credentials may be identical to someone else’s, your case may nonetheless result in a different outcome.

Q: If I am not a member of any professional association, organization, or society in my field, can I still apply for an EB-1B? 

A: Yes. There is no specific requirement that you be a member of any professional association, organization, or society in order to apply for an EB-1B visa, or to win approval. Note that ordinary memberships in professional organizations will generally not help your EB-1B chances. For instance, it takes $25 to $75 to join groups like the American Physics Society, American Cancer Society, American Biology Association, etc. Because it is merely a nominal fee and not achievement that guarantees membership, having such associations demonstrates nothing about your outstanding ability as a researcher or professor.

Q: If I do not have a permanent job offer, can I still apply for an EB-1B petition? 

A: No, EB-1B requires a permanent teaching or research job offer, as well as an employer’s sponsorship. 

Q: After my EB-1B petition is approved, do I have to continue working in the same field as indicated in my petition? 

A: Yes, you must continue working in the field specified on your EB-1B petition.  If you venture into another area, USCIS may deny your application for adjustment of status or even revoke your permanent residency after your Form I-485 is approved. 

Q: After my EB-1B petition is approved, when can I file for adjustment of status? 

A: You may file for adjustment of status as soon as a visa number becomes available to you. The EB-1 category currently has immigrant visa numbers immediately available, which means you can submit your Form I-485 as soon as your petition is approved. Alternatively, you can choose to file both applications concurrently.  

Q: What is a Request for Additional Evidence? 

A: Sometimes, the evaluating USCIS officer is unconvinced that an EB-1B applicant has adequately satisfied the extensive criteria required for a successful petition. Rather than outright deny the application, in such cases, USCIS will typically ask the petitioner for more information in what is called a Request for Additional Evidence, or RFE. Our attorneys strive to ensure that the original EB-1B petitions we submit on behalf of our clients are so strong that an RFE is not issued. But since there’s ultimately no way to predict whether or not a particular USCIS officer will request more evidence, we’ll always be prepared to respond promptly. When this happens, our firm still enjoys a near-perfect approval rate after an RFE

Q: How can I determine the likelihood of success for my case? 

A: We’d first suggest you take advantage of our free consultation for all potential clients. To get in touch with us and obtain an expert evaluation of your immigration case, feel free to e-mail us your resume and any questions to Attorney Jerry Zhang or one of his associates will respond to you within 24 hours.

Q: I currently have J-1 status and am subject to the two-year home country residency requirement. Can I still apply for an EB-1B? 

A: Yes. Note, however, that you will either need to obtain a J-1 waiver or satisfy the two-year home residency requirement before you can adjust your status. 

Q: I am currently in J-1 status and subject to the two-year home country residency requirement. If I apply for an EB-1B and get it approved, is my J-1 home country requirement automatically waived? 

A: No, a J-1 waiver and an EB-1B petition are two different things. A J-1 waiver is an application to waive the two-year home country residency requirement. An EB-1B is an immigration petition. Even if your EB-1B is approved, you are still subject to the two-year requirement. As such, you will either need to obtain a J-1 waiver or satisfy the two-year home residency requirement before you can apply for adjustment of status

Q: How many EB-1B cases has your firm handled? 

A: Our firm has successfully handled thousands of EB-1 cases over the last two decades. We have extensive experience and are proud of our record representing clients in this visa category.

Q: What is your firm’s success rate for EB-1B petitions? 

A: We have about a 98% success rate for EB-1B petitions. 

Q: Can your firm guarantee that my case will be successful? 

A: No, no attorney can ever promise that your case will result in the outcome you desire. What we can promise you is that we will take on your case as if it were our own, giving it the highest level of attention and dedication, and ultimately produce a first-rate, persuasive product on your behalf. 

Q: Once I sign a contract with your firm, how long will it take to file my petition? 

A: It depends on how long it takes you to gather the recommendation letters and other supporting documentation. In most cases, it takes a couple of months to get everything ready, but once all the documentation is in our hands, we’re generally able to file a case within a week’s time. 

Q: What will it cost for my EB-1B case? 

A: Our firm charges an initial attorney’s fee to represent aliens in their EB-1B petitions, followed by an approval fee due upon approval. We readily acknowledge that our fees aren’t the lowest out there, but trust us when we say the extra cost is warranted. When you retain our firm, you can rest assured knowing that your case will be handled by experienced immigration attorneys who will represent you with expertise and efficiency, thereby increasing your chances of success. Your case with us won’t just be another file on our dockets, but rather a high-priority case. For more information on our fee schedule, click here.

Q: I want to retain your firm. What do I need to do? 

A: Once you decide to entrust us with your case, you’ll read over a copy of our EB-1 agreement, and then sign and send it to us, along with the initial attorney’s fee. After we receive those materials, we’ll begin work on your case. To review our EB-1B contract, click here.

Q: I know your firm has offices in Houston, New York City, Chicago, and elsewhere around the country, but I live in another state. Can your firm still handle my EB-1B case? 

A: Yes. Since immigration is a matter of federal law, we can represent clients residing anywhere in the country—and indeed, throughout the world. To ensure we’re always in touch with our clients, our firm employs the latest technology. If you’re interested in seeing the various locations our clients live, check out this map.  

Q: Will I ever need to meet with you in person as a client? 

A: No, it isn’t necessary to meet with us face to face, though we enjoy seeing our clients in person. It is seamless to communicate with us via fax, telephone, mail, e-mail, and courier (Fed-Ex, UPS, etc.).

Q: Who will handle my case at your firm? 

A: Our attorneys directly handle our clients’ cases, from start to finish, by preparing petition letters, contacting clients, appearing in court, and following up on pending cases. Because of how closely involved our attorneys are in all stages of our clients’ cases, we have more attorneys than clerks at our offices nationwide. Our law clerks’ main objective is to help attorneys prepare clients’ petition packages, but each client’s case will be directly handled and reviewed by one of our experienced immigration attorneys before a petition is submitted to USCIS.

For more information on the EB-1B visa, refer to the following links:

Our experienced immigration attorneys are here to assist you in your EB-1 application. For more detailed information on the EB-1 category, including minimum requirements and USCIS policies, refer to the following links:

Updated 04/05/2017