EB-1 FAQs

Who can file the EB-1(a) petition?

The EB-1(a) can be filed as either a “self-petition” or by an employer sponsor.

Do you have to be in the United States to file an EB-1(a) petition?

No. EB-1(a) petitions can be filed for either consular processing or for adjustment of status.

What are the filing fees?

There is a $700 I-140 filing fee.

Is there premium processing available?

Premium processing is optional and available for EB-1(a) filings. Premium processing expedites the adjudication of the EB-1(a) petition. USCIS must either approve or issue a Request for Evidence (RFE) notice within 15 calendar days of receiving the petition. Upon filing an RFE response, USCIS must issue its decision within 15 calendar days of response submission. Please note that there is no premium processing for EB-1(c) filings for Intra-company Transfers of Executives and Managers. There is a $2500 I-907 filing fee for premium processing requests.

What is the processing time for an EB-1(a) petition?

Processing times are posted by Service Center and petition type on the USCIS website at www.uscis.gov/processing times.

Do you need an O-1 before you can file for EB-1(a)?

It is not necessary to have an underlying O-1 petition approved before filing an EB-1(a). However, there may be strategic reasons for doing so since the scrutiny on the EB-1(a) petition is generally higher than on an O-1 petition. You will need an underlying non-immigrant status if you are in the U.S. and your priority date for EB-1 is not current for your country of chargeability.

Do I have to file an application for my dependents (spouse, children) when I file my EB-1(a)?

Unlike the O-1, you do not file a separate dependent application when filing the I-140 petition. You will list your dependents on the I-140 petition as derivative beneficiaries who will an file adjustment of status application or an immigrant visa application when the priority date is current.

Are there any travel restrictions when I file my EB-1(a) petition?

There are no travel restrictions during the processing of the I-140 petition. There may be travel restrictions, however, if the adjustment of status application is filed concurrently with the I-140 petition.

Does the EB-1(a) allow me to work and stay in the US?

Not by itself. The EB-1(a) does not confer work authorization or an authorized period of stay in the US. The EB-1(a) is an immigrant based classification that provides a pathway to legal permanent residence. You must file either to adjust status to permanent residence or enter the U.S. on an immigrant visa in order to be able to work.

How much funding or revenue is enough to file an Extraordinary Alien petition for a Start-Up founder or key employee?

There is no magic amount of funding or revenue required to support an Extraordinary Alien petition. Instead, the funding, for example, could be used as evidence of an award and/or support the case for the originality of the foreign national’s contribution. For example, even initial seed funding can be a critical aspect of establishing original contribution if it was given by a competitive incubator or a highly acclaimed angel investor

Can more than 1 co-founder file for an Extraordinary Alien petition?

Absolutely. But it is also critical to establish the unique contributions of each co-founder. This can be challenging where there is a main individual serving as the face of the company and hence receives all of the press attention.

Who can I ask to be a reference?

References should come from individuals who are established in their own right and can speak to the original contributions you are making in your field. For start-ups this may be an investor, an advisor, a board member, a former employer, a significant customer, or even a competitor, among others. It is important to include information to demonstrate that the author of the letter is an expert in the beneficiary’s field, or similar field. You may want to include a CV, short biography, or LinkedIn profile. ImmiCore Law recommends quality over the quantity of references. We also recommend selecting experts from a variety of sources and, if possible, from different countries

How do you define the ‘field’ for a start-up founder?

In a competitive environment it is important to define the field such that you stand out. Thus, if you define the field too broadly, you may not stand out. However, if you define the field too narrowly it may not be too impressive to be at the top of the field of one. Thus, defining the field is as much art as it is science.