Lawyers and the EB1 Classification

 

Introduction

In this article, we will examine administrative policy on when and whether a lawyer is classifiable as an employment-based first preference immigrant as an alien with extraordinary ability in one of five specified categories. In general, the position of the Department of Homeland Security (DHS) and former Immigration and Naturalization Service (INS) is that a lawyer who is a member of the professions is properly classifiable as an employment-based second preference immigrant. Being a lawyer, however, does not prevent an alien from establishing eligibility in the employment-based first preference category if he or she meets the evidentiary criteria. We will also address certain issues involving lawyers and the second- and third-preferences, which extend from our discussion of lawyers and the first-preference extraordinary ability category.

Pertinent Statutes

Section 203(b)(1) of the INA outlines the classes of aliens eligible for employment-based first preference (EB1) classification. Section 203(b)(1)(A) covers aliens of extraordinary ability in the sciences, arts, education, business, or athletics. Section 203(b)(1)(B) covers outstanding professors and researchers. Section 203(b)(1)(C) covers certain multinational executives and managers coming to work for a qualifying firm in the United States. In each case, the alien must be seeking to enter the United States to continue generally in the endeavors upon which he or she establishes eligibility for the specified immigrant classification.

The employment-based preference second category (EB2) is set forth in section 203(b)(2) of the INA. It is available to aliens who are members of the professions holding advanced degrees or their equivalent or aliens of exceptional ability in the sciences, arts, or business.

The main question in this article is whether and, if so, when a lawyer can establish eligibility for EB1 classification as an alien of extraordinary ability (EB1A). We will also examine, however, when an alien lawyer may be able to establish eligibility for EB1B or EB1C classification.

Legacy INS Position

On January 20, 1995, former INS published a General Counsel opinion addressed the question whether and when a lawyer may qualify for EB1A classification as an alien of extraordinary ability. We have uploaded the opinion for your convenience [Genco. Op. No. 95-3 (Jan. 20, 1995)]. We discuss another issue addressed in the opinion — the unavailability of the EB2 classification for athletes — in a separate article [see article].

Although “General Counsel opinions are advisory in nature and do not bind the [DHS],” they may continue to constitute good legal guidance. R.L. Inv. Ltd. Partners v. I.N.S., 86 F.Supp.2d 1014, 1022 (D. Hawaii 2000) [PDF version]. At least in the case of the amenability of EB1 classification to lawyers, every indication suggests that DHS continues to adhere to the position articulated in the 1995 General Counsel opinion.

EB1A Category Does Not Include the Practice of Law

The opinion began by explaining that lawyers may qualify for the EB2 classification. The EB2 classification is available to qualified members of the professions. Section 101(a)(32) of the INA defines “profession” as follows: “The term 'profession' shall include by not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries” (emphasis added). (See also Matter of Naufahu, 11 I&N Dec. 904 (Reg. Comm. 1966) [PDF version] recognizing that “lawyer” is a “profession” as contemplated by section 101(a)(32)). From this, the General Counsel drew a negative inference, finding that the practice of law is not contemplated as falling in the purview of the EB1A categories of the “sciences, arts, education, business, or athletics,” explaining that “we believe that there is no reason here not to follow the principle that 'inclusion here means exclusion there.'” Citing to Russello v. U.S., 464 U.S. 16, 23 (1983) [PDF version] (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (Internal citations omitted)).

The American Immigration Lawyers Association (AILA) had staked out the position that the ordinary meaning of the terms “sciences” and “arts” includes the practice of law. While the INS did not disagree, it concluded that based on the language of the INA, the former Administrative Appeals Unit's prior conclusion that the EB1A category did not encompass the practice of law was “reasonable.”

A Lawyer May Be Eligible for EB1A Classification On Other Grounds

While the EB1A classification does not include the practice of law, a lawyer may qualify for EB1A classification on other grounds. The General Counsel explained:

[A]n alien who is of extraordinary ability in business or in some other EB-1 endeavor would not be ineligible for EB-1 classification simply because the alien is also a lawyer, or a member of any of the other professions that are more properly considered EB-2 endeavors.

Thus, the position of former INS was that if a lawyer established extraordinary ability in business, or alternatively, in the “sciences, arts, education, or athletics,” the alien would be qualified for classification as an EB1A immigrant. The EB1A category merely excludes the field of the practice of law in and of itself. The end of the General Counsel's statement — “or a member of any of the other professions that are more properly considered EB-2 endeavors,” is worth examining as well. Recall that section 101(a)(32) of the INA includes as “professions,” in addition to lawyers, “architects, engineers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.” The logic of the General Counsel's opinion would seem to exclude these professions and other similar professions from EB1A, except where there is overlap between one of the professions and the five categories listed in the EB1A statute, from the ambient of EB1A classification. But a member of one of these professions could qualify for EB1A classification on other grounds. For example, an architect may establish extraordinary ability in the arts through his or her practice of architecture. See e.g., Matter of D-G-L-, ID# 126489 (AAO Jan. 27, 2017) [PDF version].

The INS General Counsel also noted that a lawyer may be able to qualify for EB1 classification in a different category:

[A]lthough most lawyers are properly classified as EB-2 immigrants, a legal scholar of great distinction could well qualify for an EB-1 immigrant visa as an 'outstanding professor or researcher.'

While the practice of law in and of itself does not qualify an alien for EB1 classification, a legal scholar could, qualify as an EB1B immigrant. As we will see later in the article, the AAO has considered petitions by lawyers for EB1A classification based on seeking entry to engage in legal education.

Although the General Counsel opinion does not address the EB1C classification directly, the principles in the opinion logically extend to lawyers seeking EB1C classification. A lawyer may qualify for EB1 classification provided that he or she meets the category requirements.

Issues for Lawyers Who Do Not Meet the EB2 Degree Requirements

There are many reasons why an alien lawyer would prefer EB1 classification to EB2, including the allowance of self-petitioning for EB1A aliens. See e.g., Matter of _, (AAO Dec. 18, 2007) [PDF version] (noting that lawyer seeking EB2 classification must have a job offer if he or she does not qualify for a National Interest Waiver). For aliens seeking to enter the United States to continue in the practice of law, however, the EB2 classification may be a viable immigration option in certain cases. The General Counsel's final point addresses cases in which a foreign lawyer may be unable to meet the advanced degree requirements for EB2 classification: “The … issue concerns a lawyer who holds a Bachelor of Laws (LL.B.) degree, which the lawyer obtained without first obtaining a baccalaureate from a college.”

While noting that it is generally uncommon for an individual to receive an LL.B. degree without having graduated from college, the situation may arise in some immigrant visa petitions. The General Counsel explained that “[w]ithout the advanced degree, a member of the professions qualifies only as an EB-3 preference immigrant.” For this reason, “[a] person who holds an LL.B., without having first obtained an undergraduate baccalaureate, would seem to qualify as an EB-3 preference immigrant, unless the alien can show at least 'five years of progressive experience.'” An alien who received an LL.B. after having obtained a baccalaureate degree, however, would be deemed to have obtained an advanced degree.

In short, a foreign lawyer must meet the advanced degree requirements — either through possession of an advanced degree or a degree equivalent [see article] — in order to qualify for EB2 classification. If the foreign lawyer is unable to meet these degree requirements, he or she would have to consider potential eligibility in the EB3 classification (or EB1 if he or she may qualify on some ground independent of the practice of law).

EB2 and EB3 Requirement That Alien Lawyer Must Be Able to Practice Law in the United States

The General Counsel made clear that an alien seeking immigrant status to practice law must rely on the EB2 or EB3 categories rather than the EB1 category. In order for an alien lawyer to obtain an EB2 or EB3 visa to practice law, “[a]n alien with a degree from a foreign law school would have to show that the alien is eligible to be licensed to practice law in the United States.” This is because an individual may not practice law in the United States without a law license.

The General Counsel explained that “[t]he most common way to prove [the eligibility to practice law] may entail showing that the alien has taken, or is eligible to take, the bar exam in the State where the alien intends to live.” The General Counsel concluded, interestingly, that there may be cases in which an alien who is not eligible to take the bar exam where he or she intends to practice may still qualify for EB2 or EB3 classification. Citing to rules in Connecticut, Hawaii, and New York at the time of the opinion, the General Counsel explained that “[i]n at least some States, a foreign attorney may, without taking the State bar exam, obtain a license to practice as a 'foreign legal consultant.'” While foreign legal consultants may have limitations — such as only being able to practice in matters concerning the law of the county where he or she is licensed as a foreign legal consultant — the General Counsel found that this “would still involve the practice of law.” For this reason, he found that the INS could properly find, depending on the facts of a particular case, that a foreign legal consultant would qualify as an EB2 or EB3 immigrant coming to the United States to practice law.

Applicability to O Nonimmigrant Classification

The INS General Counsel's opinion does not address the O nonimmigrant visa category. The O1 category is available to aliens with extraordinary ability in the sciences, education, business, or athletics, or aliens with extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. Given the similarity between the O1 categories and the EB1A categories, the logic of the INS General Counsel opinion and current DHS practice regarding EB1A petitions strongly suggests that the practice of law in and of itself would not qualify an alien for O1 classification. We discuss the O1 category extensively in a separate article [see article].

Current Interpretation of Lawyers and the EB1A Classification

The DHS has not issued binding policy guidance on the availability of EB1A classification to lawyers subsequent to the 1995 General Counsel opinion. There are also no precedent decisions on the issue. Thus, in order to understand the current state of law on lawyers and the EB1A classification, we will look to unpublished decisions of the United States Citizenship and Immigration Services' (USCIS's) Administrative Appeals Office (AAO). While decisions of the AAO are only binding in the particular case, trends in non-precedent AAO decisions may be instructive to how the USCIS views different issues generally.

As we will find, the AAO clearly adheres to the view that the term “extraordinary ability in the sciences, arts, education, business, or athletics” does not include the practice of law. The following cases will examine situations where lawyers sought to establish eligibility for EB1A classification either based on their practice of law or on other grounds. The most interesting and complicated situations involve those where a lawyer seeks to establish eligibility for EB1A classification on grounds separate from his or her practice of law, but his or her claim to “extraordinary ability” is based in part on experience gained in practicing law.

Before continuing, please note that the AAO considers appeals from denials of petitions. Thus, all of the AAO decisions we will discuss involve petitions that the USCIS deemed to be not approvable as an initial matter.

Extraordinary Ability in Business

Lawyers may plausibly seek to establish eligibility for EB1A classification for extraordinary ability in business. This is because knowledge of certain types of law may evince knowledge in the workings of business more generally. One difficulty of such petitions, however, is establishing both an independent extraordinary ability in business and that the alien will pursue work in the area of his or her extraordinary ability — business rather than law — in the United States.

Matter of J-L-, ID# 2622181 (AAO Apr. 8, 2019) [PDF version]
Matter of J-L- stands as the AAO's most detailed non-precedent decision on lawyers and the EB1A classification.
The petitioner, the managing lawyer of a Chinese law firm and the Beijing-based partner of an American law firm, sought classification as an alien of extraordinary ability in business. The petition stated that he worked in Chinese intellectual property law, unfair competition, and international trade law. He took the position that these areas were all subsets of business.
The USCIS Director adjudicating the petition issued a Notice of Intent to Deny (NOID) on the grounds that the petitioner had not established that his area of intended employment qualified him for EB1A classification. In response to the NOID, the petitioner submitted a letter from the organization with which he would work, stating that he would not practice law in the United States because that would require admission to a state bar. Instead, it stated that he would “focus on business client acquisition and relationship development in assisting the firm to establish a niche China advisory practice.” It added that the petitioner would help develop the aims and objectives of the practice area, prepare the firm's message, and oversee strategies to attract investments in the firm, using his relationships with Chinese and U.S. companies. He would also advise U.S. and Chinese companies and expanding their businesses to China and the United States, respectively.
The Director denied the petition after receiving the response to the NOID, finding that the practice of law does not qualify one for EB1A classification.
On appeal, the petitioner cited to the 1995 INS General Counsel opinion, which took the position that being a lawyer is not a bar to EB1A classification for extraordinary ability in business. After noting that General Counsel opinions are binding, the AAO sustained the petitioner's appeal, “find[ing] that the information and evidence relating to the Petitioner's area of expertise and intended employment in the United States is sufficient to demonstrate that his occupation falls within the purview of 'business' as set forth in section 203(b)(1)(A)(i) of the Act.” The AAO remanded for consideration of whether the petitioner had established his extraordinary ability in the proposed business.

Matter of M-M-M-M-, (AAO Nov. 17, 2015) [PDF version]
The petitioner, an international trade arbitrator, sought EB1A classification as an alien of extraordinary ability in the field of business and commercial relations (business). The AAO concluded that the petitioner failed to submit three types of qualifying evidence, as required under regulation, to establish her extraordinary ability in business. The decision did not address whether her intended work in the United States would qualify for EB1A classification.

Matter of _, (AAO Nov. 29, 2013) [PDF version]
Petitioner, seeking classification as alien of extraordinary in business, listed his occupation as “lawyer” and job description as “lawyer.” Petitioner argued that the decision denying his petition rested on a misunderstanding of the job responsibilities of lawyers, and argued that those job responsibilities fell within the purview of “business.” The AAO concluded that the petition indicated that the petitioner was seeking entry into the United States to practice law, and that the petition did not support the conclusion that his job responsibilities would fall under the purview of “business.”

Matter of _, (AAO Mar. 26, 2014) [PDF version]
Petitioner, an international business lawyer, sought classification as an alien of extraordinary ability in business. AAO affirmed the denial of the petition on the grounds that the petitioner had not submitted at least three out of ten categories of evidence required to establish extraordinary ability as an international business lawyer under the regulations. The decision does not address whether the petitioner's intended job fell within the purview of “business.”

Extraordinary Ability in Education

Lawyers may also seek to establish eligibility for EB1A classification for extraordinary ability in education.

Matter of _, (AAO Feb. 18, 2015) [PDF version]
Petitioner sought classification as an alien of extraordinary ability as a lawyer. Post-filing, the petitioner sought to change his proposed occupation from “lawyer” to “education” with additional evidence. The AAO had initially denied his petition on multiple grounds, including on the ground that the petition did not demonstrate that his future employment in the United States would be as an educator. The petitioner's motion to reopen was denied because, while he discussed his area of intended employment, he failed to address and overcome each of the issues discussed in the AAO's most recent decision in the case. See also Matter of _, (AAO Oct. 14, 2014) [PDF version] (earlier decision regarding the same petition — addressing submission of evidence to change area of intended employment, noted that petition must be approvable when filed [see article]).

Matter of _, (AAO June 25, 2014) [PDF version]
Petitioner, who stated that he was seeking EB1A classification to practice law in the United States, failed to establish through additional evidence that he was an alien of extraordinary ability in either education or business.

Matter of _, (AAO Oct. 18, 2007) [PDF version]
On appeal, AAO concluded that alien had established his extraordinary ability as an attorney, scholar, and lecturer, and granted his petition for EB1A classification. The AAO noted the alien's founding of a scholarly law journal in South Korea, his membership in several Korean and U.S. law associations, his working for an international law firm, and his authorship of notable scholarly articles despite having not pursued a career in academia in South Korea. The decision is unclear as to whether the alien sought classification for extraordinary ability in science or education.

Extraordinary Ability as a Lawyer

Matter of H-T-, ID# 1161068 (AAO May 15, 2018) [PDF version]
Petitioner sought EB1A classification for having extraordinary ability as a lawyer. He was a lawyer specializing in international law. The AAO denied the petitioner's motions to reopen and reconsider on the basis that he had not submitted at least three types of evidence required by regulation to establish his extraordinary ability. The decision does not address his area of intended employment or whether it would have qualified for EB1A classification, having denied the petition on other grounds. This AAO affirmed its prior decisions again in Matter of H-T-, ID #1816301 (AAO Dec. 11, 2018) [PDF version]. The 2018 decision was the AAO's eleventh decision in the same case.

Matter of _, (AAO May 5, 2015) [PDF version]
Petitioner had sought EB1A classification as an alien of extraordinary ability as a lawyer. In two initial decisions, the AAO expressed concerns that the petitioner's intended area of employment did not qualify him for EB1A classification. The petitioner had submitted evidence to address his area of intended employment, indicating that he would work as a consultant rather than a lawyer, but failed to address the AAO's alternative grounds for denying the petition. The AAO deemed the additional issues abandoned, and denied the petitioner's motion to reconsider while granting the motion to reopen to affirm the prior decision denying the petition with amendments.

Matter of _, (AAO Jan 15, 2009) [PDF version]
AAO affirmed decision that petitioner failed to establish extraordinary ability as a lawyer based on the evidence she submitted. The decision contains no discussion of whether her proposed occupation would qualify for EB1A classification.

LL.B. Degree and EB2 and EB3 Classification

In one unpublished AAO decision, the AAO concluded that an EB2 beneficiary seeking a National Interest Waiver established through the submission of an educational evaluation that his LL.B. degree was the equivalent of a J.D. degree awarded by a regionally accredited United States college or university. Thus, the AAO concluded that the beneficiary qualified as a member of the professions holding an advanced degree. Matter of _, AAU EAC 97 072 50117 (AAO Feb. 26, 1998). In a 2007 decision, the AAO concluded that a three-year LL.B. degree from an Indian university was not the equivalent of a U.S. baccalaureate degree and an advance degree and thus did not qualify the EB2 beneficiary as a “professional.” Matter of _, AAU LIN 06 229 50927 (AAO Aug. 20, 2008) [PDF version].

EB2 and EB3 Foreign Legal Consultants

In 2017, the AAO sustained the appeal of the denial of an EB2 petition for an alien to work as a foreign legal consultant after finding that the petitioner overcame the ground of denial that it could not pay the beneficiary the proffered wage. Matter of C-M-, Inc., (Feb. 21, 2017) [PDF version]. In one 1998 decision, the AAO concluded that an EB2 petitioner seeking to work as a foreign legal consultant qualified as a member of the professions holding an advanced degree, but found that he did not qualify for a National Interest Waiver. Matter of _, AAU WAC 97 206 51963 (AAO Aug. 18, 1998). Neither decision addressed the alien's education or proposed employment in detail. In one 2006 petition, the AAO affirmed an appeal by an EB3 petitioner on the basis that the beneficiary had accrued the necessary experience practicing law in Japan to meet the job offer's requirements for being a foreign legal consultant, and thus approved the petition. Matter of _, AAU WAC 04 259 51289 (AAO Dec. 20, 2006) [PDF version].

Conclusion

In order for a lawyer to qualify for EB1A classification as an alien of extraordinary ability, he or she must establish extraordinary ability on one of the five specified non-legal grounds and establish that he or she intends to work in the United States in that area of extraordinary ability. Although there is no binding precedent on the issue, DHS's position that the practice of law is not contemplated by the EB1A statute is clear agency policy.

Those seeking to enter the United States to actually practice law may seek EB2 or EB3 classification. The General Counsel opinion notes that cases in which the alien does not have a J.D. degree or may not be immediately eligible for admission to the bar may cause complications in certain cases.

In general, a petitioner seeking to bring a foreign national to the United States for employment or a foreign national seeking immigrant status to work in the United States should consult with an experienced immigration attorney before taking action. An experienced attorney will be able to consider the facts of the case and determine the best path forward, if any. In the case of a lawyer — whether seeking to practice law in the United States or work in another endeavor — an attorney may be able to determine which immigrant classification is most appropriate given the facts of the particular situation and the intended employment.

To learn more about employment immigration, please see our growing selection of articles on site [see category].