Extraordinary Ability EB(1)(a)
The Extraordinary Ability classification is within the employment-based first preference category (EB-1) and is available to foreign workers of outstanding ability in sciences, arts, education, business, or athletics. Extraordinary ability means a level of expertise indicating that the individual is among the small percentage of individuals who have risen to the very top of the field of endeavor. The foreign worker must demonstrate that s/he has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.
An Extraordinary Ability petition may be filed by an employer or by a self-sponsoring foreign worker. If the foreign worker files a self-petition, the petition must be accompanied by clear evidence that the foreign worker is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s) or evidence of prearranged commitments such as contracts.
The Extraordinary Ability petition requires specific evidence of the foreign national’s qualifications and international recognition. The criteria are similar to O-1 classification except that the standard in the Arts is here the same as the standard in other fields: namely, the foreign national must demonstrate that s/he has reached the very top of the field. As with the O-1, extraordinary ability can be based on a major, internationally recognized award, such as an Oscar, Nobel or Pulitzer Prize, or at least 3 of the following:
- Nationally or internationally recognized prizes or awards;
- Membership in associations which require outstanding achievements of their members;
- Published material about the foreign worker in professional or major trade publications or other major media;
- Participation, either individually or on a panel, as a judge of the work of others in the field;
- Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
- Authorship of scholarly articles in professional or major trade publications or other major media;
- Display of the individual’s work in the field at artistic exhibitions or showcases;
- Performance in a leading or critical role for organizations or establishments that have a distinguished reputation;
- Evidence of high remuneration for services; and/or
- Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
An Extraordinary Ability petition should also include testimonial/reference letters from substantial, recognized national or international organizations/institutes/ government agencies with the expertise to state that the foreign worker is among the few individuals at the top of the field.
Outstanding Professor or Researcher EB(1)(b)
An individual qualifies for immigrant visa classification as an Outstanding Professor or Researcher if s/he 1) is recognized internationally as outstanding in a specific academic area; 2) has at least 3 years of experience in teaching or research in the academic area; and 3) seeks to enter the United States for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area, for a comparable position with a university or institution of higher education to conduct research in the area, or for a comparable position to conduct research in the area with a department, division, or institute of a private employer so long as the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.
An Outstanding Professor or Researcher petition may only be filed by an employer. Experience in teaching or research while working on an advanced degree will only be acceptable if the individual has acquired the degree, and if the teaching duties are such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized in the academic field as outstanding. Evidence of teaching and/or research experience must be in the form of letter(s) from former or current employer(s) and must include the name, address, and title of the writer, and a specific description of the duties performed by the person.
A petition for an Outstanding Researcher or Professor must be accompanied by evidence that the Professor or Researcher is recognized internationally as outstanding in the specific academic field. Such evidence must include at least 2 of the following:
- Major prizes or awards for outstanding achievement in the academic field;
- Membership in associations in the academic field that require outstanding achievements of their members;
- Published material in professional publications written by others about the person’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
- Evidence of the individual’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
- Evidence of the person’s original scientific or scholarly research contributions to the academic field; and/or
- Evidence of the individual’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
Although the regulations state that the foreign worker need only demonstrate 2 of the criteria, in practice the USCIS requires much more national or international recognition or renown. Thus, the challenge for an Outstanding Professor or Researcher petition is proving that the foreign worker is outstanding. As with EB-1 Extraordinary Ability petitions, testimony from leading, independent academics or other experts is important for proving a foreign national qualifies as an Outstanding Professor or Researcher. Since all researchers publish, the USCIS looks for proof that the particular foreign worker’s publications and contributions rise above the high standard of this select group.
National Interest Waiver EB-2
The National Interest Waiver (NIW) is within the employment-based second preference category (EB-2) and is available to foreign workers of exceptional ability in the arts, business, athletics, and to foreign workers with advanced degrees. Normally, a job offer from a US employer and Labor Certification approved by the Department of Labor are a pre-requisite to filing the immigrant visa petition with the United States Citizenship and Immigration Services (USCIS). However, a National Interest Waiver (NIW) petition requests that the otherwise required US job offer requirement and the labor certification requirement be waived because it is in the “national interest” to waive the requirements.
The foreign worker must demonstrate that s/he is seeking work in an area of substantial intrinsic merit to the US, that the benefit from the foreign worker’s proposed activity will be national in scope, and that such national interest would be adversely affected if a Labor Certification Ire required for the foreign worker.
A National Interest Waiver petition may be filed by an employer or by a self-sponsoring foreign worker. As a general matter, the petition must demonstrate that the foreign worker’s admission as an immigrant will improve the US economy; improve wages and working conditions of US workers; improve educational and training programs for US children and under-qualified workers; provide more affordable housing for young, aged, or poor US residents; lead to more productive use of the national resources; or that the foreign worker’s admission is requested by an interested US government agency. USCIS adjudications officers look for realistic evidence of substantial prospective benefit to a national interest item or agenda which specifically sets the foreign worker apart from others in the field.
It is not enough to demonstrate that the foreign worker is employed or will be employed in a field of high national interest; rather, NIW petitions must clearly document the individual foreign worker’s contributions to the US. The foreign worker may qualify by being found to be a key or critical member of a team if it can be demonstrated that the team function would be severely impaired without this member.
A NIW petition must include testimonial/reference letters from substantial, recognized national or international organizations/institutes/ government agencies with the expertise to definitely state that the work or contribution of the individual truly is in the national interest. The authors of these third-party reference letters should clearly state how they came to be familiar with the foreign worker’s contributions. Reference letters should evidence, when possible, that the beneficiary’s work has already had a significant impact on the field.
Approvals in this category have become more difficult to obtain since August of 1998, due to a case known as “New York State Department of Transportation” (NYSDOT). USCIS is scrutinizing all NIW petitions with the NYSDOT standard in mind and, in many instances, is applying a higher standard similar to the “extraordinary ability” standard. USCIS closely scrutinizes applications of graduate students who have not had enough time or experience as a researcher or engineer and have done little in their fields, aside from the work required to complete their degrees. In accordance with established criteria, it would be very difficult for such an individual to qualify.
Transferring Executive or Manager EB(1)(c)
The employment-based immigrant category for Multinational Executives and Managers (EB(1)(c)) allows transferring managers and executives to apply for a green card. It is very common for employers who sponsor their transferees for L-1A visas to later file an EB(1)(c) petition on their behalf. The eligibility requirements for the L-1A visa and EB(1)(c) immigration petition are similar. Specifically: 1) there must be a qualifying relationship between the US petitioning company where the applicant will work and the foreign company where the applicant has worked; 2) the transferee must hold a managerial or executive level position before and after being transferred; 3) the transferee must have worked for the foreign entity continuously for at least 1 of the 3 years prior to entering the US in nonimmigrant status.
Green Card Sponsorship for Professionals Based on Labor Certification EB(2)/EB(3)
Generally, obtaining lawful permanent resident (“green card”) immigration status for a foreign worker on the basis of an offer of employment in the US is a three-step process.
In the first step, an employer files a Form ETA-9089 Labor Certification Application with the Department of Labor (DOL). The labor certification application process is designed to test the US labor market for qualified US workers. In March 2005, Program Electronic Review Management (PERM) took effect and was designed to streamline the labor certification application process. Under PERM, the employer must demonstrate to the Labor Department that: (1) there are no US workers qualified, willing or available for the job offered in the area of intended employment; (2) the job is offered at the prevailing wage as determined by the DOL; and (3) adequate recruitment has been conducted during the 6-month period immediately preceding the filing of the application in accordance with the PERM regulations.
In the second step, the employer petitions the United States Citizenship and Immigration Services (“USCIS”) to accord an immigrant (permanent) visa to the foreign worker. The Immigration Visa Petition (I-140) Petition must be filed within 180 days of the certification of the Form ETA-9089 or the labor certification application will become void. In order for the immigrant petition to be successful, the sponsoring employer must demonstrate its ability to pay the wage stated on the PERM application from the time of filing the PERM application until the time the foreign worker obtains lawful permanent resident status. In order to do so, the employer must submit 1) employee paystubs and W-2 forms, 2) annual reports, 3) federal tax returns, and/or 4) audited financial statements. The foreign national, in turn, must document that s/he met the minimum education, experience, and special requirements indicated on the PERM application prior to being hired by the employer.
In the third step, a foreign worker who is in the US may file Form I-485 Application to Adjust Status in order to obtain lawful permanent resident status. The I-485 application can be filed concurrently with the I-140 Petition if the foreign national’s priority date is current.
Priority dates determine when a foreign national is eligible to file the final stage of the application for the green card. The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued to individuals seeking permanent resident status (a green card) each year. The Visa Bulletin chart, which is published each month by the US Department of State, records the cut-off dates for each visa category and country. A foreign national can determine when s/he will be able to file the I-485 application by checking the Visa Bulletin. The priority date in an employment-based (EB) case requiring Labor Certification is the date that the case was filed. Only when the priority date is current (i.e., the Visa Bulletin chart indicates “C” for a given category and country), there is no waiting period for filing the I-485 application. If the numbers are backlogged, the foreign national must wait until his/her priority date becomes current in order to file the third step.
With the filing of the Adjustment of Status application, the foreign national and his or her dependent family members may file applications for employment authorization documents (EAD) and travel authorization documents (Advance Parole). Once the Adjustment of Status application is filed, the foreign national may not travel abroad without an Advance Parole (travel authorization) document unless s/he has a valid H or L visa. It generally takes USCIS 3 months to adjudicate the EAD and Advance Parole documents from the time of filing.
As an alternative to filing an Adjustment of Status application, upon approval of the I-140 petition and when his/her priority date becomes current, the foreign worker may complete final processing at a US embassy or consulate abroad (“consular processing”). This option may appeal to O and E visa holders who cannot afford restrictions on their ability to travel while their Adjustment of Status application is pending. Unlike adjustment of status, however, consular processing requires that the foreign national obtain police certificates from each country where s/he has lived for more than 6 months since attaining the age of 16 and requires that s/he appear for an interview at the consular post when scheduled.
Labor Certification or PERM Application
The labor certification or PERM application is designed to test the US market for minimally qualified US workers. In the application, the employer must state its minimum education and experience requirements for the position offered. The stated requirements should be the minimum requirements, not the ideal requirements. The sponsored foreign worker, in turn, must show that s/he possessed all the minimum education, experience, and special requirements prior to being hired by the sponsoring employer. With very limited exceptions, the foreign worker cannot use experience gained with the employer in order to meet those minimum requirements.
The next major consideration is the salary offer. The salary offered must meet the DOL’s prevailing wage for the position. The employer must be able to document that it has the ability to pay that salary from the time that the PERM application is filed until permanent residency is granted. This can be done through W-2s, tax returns, audited financial statements, and/or annual reports.
Under PERM, the employer conducts its good faith recruitment prior to filing the application. For all PERM applications, the employer must place an internal job posting in a conspicuous location at the jobsite for at least 10 consecutive business days. Second, the job must be placed in the state job bank for 30 consecutive business days. Third, the employer must place two Sunday newspaper advertisements in a newspaper of general circulation. For professional positions requiring a minimum of a Bachelors degree, the employer must also engage in at least 3 of the following recruitment steps: (a) publishing an advertisement on the employer’s website, (b) publishing an advertisement on another job website, (c) publishing an advertisement in a trade or professional organization, (d) using an incentive-based employee referral program, (e) engaging a private employment firm, (f) participating in job fairs, (g) using on-campus employment offices, (h) participating in on-campus recruitment (only for entry-level positions), (i) publishing an advertisement in an ethnic or local newspaper, and (j) advertising on radio or television. When the employer receives resumes, the employer must screen applicants in accordance with its normal recruitment procedures. The sponsored foreign national may not be involved in the resume screening or recruitment process. At the end of the recruitment period, if no US workers Ire qualified and available for the job opportunity, the PERM application may be filed with the DOL.
The PERM process is an attestation system and is monitored by the DOL through audits. PERM applications may be selected randomly for audit or through one of a number of audit “triggers”. For example, if there is a foreign language requirement or if the job requirements exceed those of the DOL for the specific occupation, the PERM application will automatically be selected for audit. In the event of an audit, the DOL may ask to see evidence of all advertisements, all resumes received, a detailed explanation for disqualification of each US candidate, evidence of interviews conducted or evidence of the employer’s efforts to contact candidates for interviews (e-mail, phone records, etc.), as Ill as a letter from the employer explaining the “business necessity” for its minimum education, experience, and special requirements.
Family-based Green Cards
Family members can sponsor green cards based on a preference system. Immediate relatives of US citizens, who include parents, spouses and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available. The relatives in the remaining categories must wait for an immigrant visa number to become available according to the following preferences:
- First preference: Unmarried, adult sons and daughters of US citizens. (Adult means 21 years of age or older.)
- Second Preference: Spouses of lawful permanent residents and their unmarried children (under 21) (2A) and unmarried adult sons and daughters of lawful permanent residents (2B).
- Third Preference: Married sons and daughters of US Citizens.
- Fourth Preference: Brothers and sisters of US Citizens.
Foreign nationals in the US with approved immigration petitions (I-130) may file for Adjustment of Status to adjust their nonimmigrant status to permanent residence once their priority date is current. Foreign nationals outside the US with approved immigration petitions must apply for consular processing to receive permanent residence status once their priority date is current. Immediate relatives in the United States (spouses, parents and minor children of US citizens), who do not have to wait for an immigrant visa to become available, can file the I-130 petition together with the I-485, Adjustment of Status Application. For marriage-based green cards where the marriage is less than 2 years old, USCIS will issue a conditional residence card (CR). In order to remove the condition, the spouse must file Form I-751 within 90 days of the second anniversary of the grant of conditional residence.
Naturalization is the process by which US citizenship is granted to a foreign citizen or national. In most cases, an applicant for naturalization must be a permanent resident (green card holder) before filing. A permanent resident may be eligible for naturalization if s/he has lived in the United States for at least 5 years as a permanent resident or 3 years if married to and living with a US citizen. To apply for US citizenship, applicants must: (1) be at least 18 years old at the time of filing the Application for Naturalization, Form N-400; (2) demonstrate continuous permanent residence; (3) demonstrate physical presence; (3) have lived for 3 months in the USCIS district or state where the Application for Naturalization, Form N-400 is filed; (4) demonstrate good moral character; (5) be able to read, write, speak, and understand basic English; (6) demonstrate a knowledge of US civics (history and government); and (7) take the oath of allegiance to the United States.