Checklist: Obtaining EB-1 visas for priority workers and persons of extraordinary ability (USA)

Introduction

This guide will assist in-house counsel, private practice lawyers, and human resource professionals with obtaining EB-1 visas for priority workers and persons of extraordinary ability.

This checklist covers:

1. Understanding the criteria for an EB-1 visa
2. Completing US Citizen and Immigration Services (USCIS) Form I-140
3. Preparing for a biometric services appointment or USCIS interview

This checklist can be used in conjunction with the following How-to guides: Overview of US employment law and How to prepare for a US Immigration and Customs Enforcement I-9 audit.

Step 1 – Understanding the criteria for an EB-1 visa

Step 2 – Completing US Citizen and Immigration Services (USCIS) Form I-140

Step 3 – Preparing for a biometric services appointment or USCIS interview

Legal framework

Under 8 CFR 204.5, entry preference is allocated for certain employment-based immigrants, including priority workers whose presence benefits the nation as a whole. These priority workers are eligible to apply for an EB-1 visa. Labor certifications from the Department of Labor are not required for any of the three classifications under EB-1 visas.

The maximum number of EB-1 visas is 28.6 percent of the annual limit for immigrant visas.In 2025, the maximum number of EB-1 visas (42,900) were issued within about 11 months of the fiscal year. The limit resets at the start of the new fiscal year - October 1, 2025 for the financial year 2026.

A person who holds an EB-1 visa is allowed to stay in the United States indefinitely, unless there are grounds for removal. An EB-1 visa is a green card which grants permanent residence. It is not to be confused with a non-immigrant visa. An EB-1 visa holder may apply for US citizenship after five years of continuous residence in the United States.

Note that the new presidential administration in the US has made immigration policy an important part of its agenda. Changes to existing policy may happen rapidly, so information should be verified by Citizenship and Immigration Services (USCIS) before taking action.

Step 1 – Understanding the criteria for an EB-1 visa

Priority employees who are eligible to apply for EB-1 visas include:

• individuals with extraordinary ability in the arts, sciences, education, business, and athletics;
• outstanding professors and researchers; and
• certain multinational executives and managers.

On October 2, 2024, USCIS released new guidance clarifying how it evaluates evidence to determine eligibility for a person of extraordinary ability. The guidance clarifies the following:

• team awards qualify as lesser recognized prizes;
• past memberships are considered for membership criteria;
• published material does not need to demonstrate the value of the person's work; and
• non-artistic exhibitions are considered as only comparable evidence supporting artistic exhibitions.

A person of extraordinary ability:

• 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.
• seeks to enter the United States to continue work in the area of extraordinary ability.
• will substantially benefit the United States in the future.

The guidance also clarifies what will be considered as evidence of extraordinary ability. It may be worth noting that some practitioners have commented that EB-1 has been subject to a noticeable increase in the level of scrutiny. This increased scrutiny has led to more frequent requests for evidence of extraordinary ability and an increased number of denials or revocations of petitions that were previously approved, especially for applicants who come from certain countries like India or Russia.

1.1 Is the applicant a person of extraordinary ability?

To qualify under as a ‘person of extraordinary ability,’ an alien must possess ‘a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.’ (See, 8 CFR 204.5(h)(2)).

1.2 Is the applicant an outstanding professor or researcher?

Achieving EB-1B status as an ‘outstanding professor or researcher’ demands a level of accomplishment that is truly exceptional. It is not sufficient to be merely ‘very good.’ To qualify as an ‘outstanding professor or researcher,’ the alien must have at least three years of teaching or research experience, and the alien must have a written offer, unlike the EB-1A category which allows for self-petitioning, of employment from a US university offering the alien either a tenure track position or permanent research position, or an offer of employment from a private employer offering the alien a full-time position. (See, 8 CFR 204.5(i)(3)(iv)).

1.3 Is the applicant a multinational manager or executive?

Certain executives and managers of multinational companies are eligible to apply for an EB-1 visa. An ‘executive’ is defined as an employee who directs management of the company or a major portion of it, sets goals and policies, exercises discretion in decision-making, and who receives only general supervision from higher levels of the company. A manager is responsible for the conduct of the company or a part of it, supervises other supervisors or professionals, or undertakes the administration of an essential function of the company, and exercises ‘direction over the day-to-day operations’ over which the manager has authority. (See, 8 CFR 204.5(j)(4)).

Step 2 – Completing US Citizen and Immigration Services (USCIS) Form I-140

2.1 Who is filing the form?

The requirements for filling out a petition for an EB-1 vary depending on the category of EB-1 visa being applied for.

2.1.1 Applicant

An alien may file a petition (Form I-140) as an alien with extraordinary ability. Outstanding professors and researchers and multinational executives and managers may not file a petition for EB-1 visa on their own behalf (8 CFR 204.5(h)(1)).

2.1.2 Employer

Any US employer may file a petition on behalf of any alien who is an outstanding professor or researcher. Any US employer may also file a petition on behalf of an alien who is a multinational executive or manager (8 CFR 204.5(i)(1)).

2.2 Is the initial evidence attached?

‘Initial evidence’ refers to documentation evidencing an alien’s eligibility for an EB-1 visa as set out in the paragraphs below.

2.2.1 A person of extraordinary ability

There are two types of initial evidence that a person seeking an EB-1 visa for extraordinary ability may provide. If the applicant is the one-time recipient of a major international prize (eg, the Nobel Prize), that alone will be sufficient to prove extraordinary ability.

If the applicant is not the recipient of a major one-time achievement, then they must provide proof of at least three of the following (8 CFR 204.5(h)(3)):

• receipt of a lesser nationally or internationally recognized award in their field of endeavor;
• membership in associations in the field in which the applicant seeks recognition. The association must require outstanding achievement of its members;
• the applicant has been the subject of published material in professional journals, major trade journals, or other major media;
• the applicant has participated as a judge of the works of others in the field of expertise;
• the applicant’s significant scientific, scholarly, artistic, athletic, or business contributions in the field;
• the applicant’s scholarly or professional publications in major media;
• artistic displays or exhibitions;
• proof of leadership in distinguished organizations;
• the applicant commands a high salary for their professional skills; or
• commercial success in the applicant’s field of endeavor.

2.2.2 Outstanding professor or researcher

An alien who wishes to apply for an EB-1 visa as an outstanding professor or researcher must present, along with their application, initial evidence that they are recognized internationally in the academic field of their speciality (8 CFR 204.5(i)(3)). Such proof must take the form of at least two of the following:

• major academic prizes or awards;
• membership in professional associations in the academic field;
• publications about the alien in noteworthy journals;
• acting as a judge of the work of others in the field;
• original contributions to the field; or
• authorship of scholarly books or articles in the field of expertise.

2.2.3 Multinational executive or manager

The initial evidence required to apply for an EB-1 visa as a multinational executive or manager must demonstrate that:

• for aliens outside the United States - in the three years immediately preceding the filing of the petition they have been employed overseas for at least one year in a managerial or executive capacity; or
• for aliens already in the United States - in the three years preceding entry as a nonimmigrant, they were employed overseas for at least one year in a managerial or executive capacity;
• the prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas; and
• the prospective United States employer has been doing business for at least one year (8 CFR 204.5(j)(3)).

2.3 Are the applicant’s spouse and children included?

Once the alien’s application for EB-1 status has been approved, the alien’s spouse and all children under the age of 21 are eligible for permanent visa status. A separate permanent residency application is required for spouse and children.

2.3.1 Information about spouse and children (Part 7)

In Part 7 of Form I-140, the petitioner must provide relevant biodata for the alien’s spouse and for all eligible dependent children. ‘Biodata’ refers to biographical information regarding the visa applicant.

2.4 Has the permanent job offer been included?

For professors and researchers, a written offer either of a tenure position or a permanent research position is required (8 CFR 204.5(i)(3)(iv)). An executive or manager must have an offer of employment. The letter must describe the alien/employee’s duties to be performed.

2.4.1 Request for waiver

An alien may be exempted from the need to provide a job offer prior to application if the exemption would be in the national interest of the United States, see (8 CFR 204.5(K)(4)(ii)). Petitioners must submit Citizenship and Immigration Services Form I-140, along with evidence, to support their claim of national interest (note: 8 CFR 204.5 refers to Form 750B; however that form has been discontinued).

2.4.2 Employer’s ability to pay wages

Any employer petitioning on behalf of an alien must establish that they are able to pay the alien (8 CFR 204.5(g)(2)). This may take the form of annual reports, tax returns, audited financial statements, or other such records or attestations.

2.5 If the applicant is in the United States, is their arrival/departure record (Form I-94) included?

The Form I-94 provides the arrival/departure record number. This form should be attached to the alien’s passport. The expiration date of the authorization to be in the United States would have been stamped on the I-94 Form by border officials.

2.6 Are translations provided for documents not in English?

All documents, including initial evidence, must be translated into English from their original language.

2.7 Has the filing fee been included?

A petition is not complete until the filing fee has been paid. The current filing fee is $715 for the I-140 (see page 11 of the UCIS Fee Schedule). Depending on the process that the applicant follows (namely, internal processing or processing at a US consulate) and the age of the applicant, other fees may apply.

Step 3 – Preparing for a biometric services appointment or USCIS interview

3.1 Is a biometric services appointment necessary?

The USCIS may require any applicant, petitioner, sponsor, or beneficiary to appear at an interview or a biometric collection appearance to establish the person’s true identity. (See, 8 CFR 103.2(b)(9)). The biometric information collection appearance requires the applicant to provide their fingerprints, photograph, or signature.

3.1.1 Notice of appointment

The appointment will be at a local Application Support Center. The petitioner will receive a Notice of Appointment Form I-797C several weeks prior to the appointment with the date and location of the appointment. See Preparing for Your Biometric Services Appointment.

3.1.2 Identification documents

The applicant must bring a copy of the Notice of Appointment, their passport, other photo identification, and any other residency documents already issued by the government.

3.1.3 Fee

Previously, the USCIS requested a biometric service fee payable at the time of application. As of April 1, 2024, the cost of biometrics is included in the main filing fee for most applications, which makes the process more streamlined and affordable for many immigrants (see USCIS FAQ on reduced fees).

3.2 Is an interview required?

For an internal applicant, USCIS officers may determine on a case-by-case basis whether an interview is necessary. The officer must consider all evidence in the petitioner’s file when making this finding. Applicants outside the United States are required to participate in an interview.

3.2.1 Waiver

There are several circumstances under which the USCIS officer may choose to waive an interview:

• when an applicant clearly is ineligible;
• unmarried children under 21 years of age of US citizens;
• parents of US citizens; and
• unmarried children under 14 years of age of lawful permanent residents.

This waiver also applies to military personnel, incarcerated petitioners, and petitioners suffering from illness or incapacitation. Unmarried children must have filed a Form 1-485 themselves or through their family. See USCIS Interview Guidelines.

Additional resources

USCIS – Employment-Based Immigration: First Preference EB-1
USCIS Policy Manual

Related Lexology PRO content

How-to guides:

Overview of US employment law
How to draft an employment contract
How to draft the key provisions of an employee handbook
How to use arbitration agreements in employment
How to prepare for an Occupational Safety and Health Administration (OSHA) inspection
How to develop a whistleblower policy and reporting program
How to comply with the unemployment insurance program
Overview of workplace harassment
How to understand and comply with wage and hour laws
How to prepare for a US Immigration and Customs Enforcement I-9 audit

Checklists:

Dealing with workplace injuries
Terminating the employment of an at-will employee
Determining the difference between an employee and an independent contractor
Developing an Equal Employment Opportunity Commission (EEOC) compliant policy
Determining whether employees are exempt from wage and hour laws
Determining Family and Medical Leave Act eligibility
Employer compliance with the Patient Protection and Affordable Care Act
Compliance with child or spousal support orders

Reliance on information posted:

While we use reasonable endeavours to provide up to date and relevant materials, the materials posted on our site are not intended to amount to advice on which reliance should be placed. They may not reflect recent changes in the law and are not intended to constitute a definitive or complete statement of the law. You may use them to stay up to date with legal developments but you should not use them for transactions or legal advice and you should carry out your own research. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to our site, or by anyone who may be informed of any of its contents.