• Individuals of Extraordinary Ability
• Outstanding Researchers/Professors
• Multinational Managers/Executives
• National Interest Waivers

In applying for employment-based permanent residence ("green card"), a select group of individuals may be eligible to bypass filing the labor certification with the Department of Labor, and directly file the I-140 immigrant petition with the United States Citizenship and Immigration Service ("USCIS"). The four employment-based immigrant visa categories are: 1) Extraordinary Ability Immigrants; 2) Outstanding Researchers/Professors; 3) Multinational Managers/Executives; and 4) National Interest Waivers.

Extraordinary Ability Immigrants

Extraordinary ability immigrants fall under the first preference employment-based immigrant visa category (EB1-1). An individual may qualify for a green card in this category if his/her extraordinary ability in the sciences, arts, education, business, or athletics has been demonstrated by 1) sustained national or international acclaim as evidenced through extensive documentation; 2) the individual seeks to enter the United States to continue work in the area of extraordinary ability; and 3) his/her entry will substantially benefit prospectively the United States.

No offer of employment is required for this category, although the individual must demonstrate that he/she will continue to work in the field of extraordinary ability. An individual may therefore self-petition under this category.

The USCIS defines "extraordinary ability" as "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," as proven by "sustained national or international acclaim" and that one's achievements have been recognized in the field of expertise.

For this elite category, one may qualify by demonstrating a one-time achievement (such as receipt of a major, international recognized award). An example of this type of one-time achievement include receipt of the Nobel Prize or Academy Award. Alternatively, and more commonly, one may demonstrate extraordinary ability qualification on the basis of a career of acclaimed work in the field of endeavor. The USCIS considers the following types of evidence in evaluating whether an individual qualifies under the extraordinary ability category:

• Documentation of the receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
• Documentation of membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
• Published material in professional or other major trade publications or major media, relating to the one's work in the field;
• Evidence of one's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field;
• Evidence of one's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
• Evidence of one's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
• Evidence of the display of one's work in the field at artistic exhibitions or showcases;
• Evidence that one has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
• Evidence that one has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;
• Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales; or
• In circumstances where the above standards do not readily apply to an occupation, immigration regulations permit comparable evidence to establish eligibility.

It is insufficient to simply meet three of the ten regulatory criteria, if sustained international or national acclaim is not proven. The overall evidence must demonstrate that his/her achievements in his/her field have been recognized as extraordinary, and therefore these petitions are generally submitted with voluminous documentation. This category is an extremely elite category and as such, only the very top in their respective field will successfully qualify.

Outstanding Professors and Researchers

The outstanding professor and researcher category is a first preference employment-based immigrant visa category (EB1-2).

An outstanding researcher or professor is defined as an individual who is recognized internationally as outstanding in his/her specific academic area of teaching or research. The individual must possess at least 3 years of experience teaching or in research in the academic area. In addition, the individual must have a job offer for: 1) a tenured or tenured-track position within a university or institution of higher education to teach in the academic area; 2) a comparable position with a university or institution of higher education to conduct research in the area; or 3) a comparable position to conduct research for a private employer. In order to qualify, the private employer must have achieved documented research accomplishments, and must employ at least three persons in full-time research.

An individual may not self-petition under this category. The immigrant visa petition must be filed by a qualified US employer. In addition, a permanent job offer is required. For purposes of this category, the USCIS defines permanent position as a tenured, tenure-track, or for a term of indefinite or unlimited duration where the employee will have a continued expectation of continued employment unless there is good cause for termination.

The USCIS considers the following types of evidence in evaluating whether an individual qualifies as an outstanding professor or researcher:

• Documentation of the beneficiary's major prizes or awards for outstanding achievement in the academic field;
• Documentation of the beneficiary's membership in associations in the academic field which require outstanding achievements;
• Published material in professional publications written by others about the beneficiary's work in the academic field;
• Evidence of the beneficiary'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 beneficiary's original scientific or scholarly research contributions to the academic field; or
• Evidence of the beneficiary's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

National Interest Waiver Immigrants

A person whose immigration is in the national interest of the United States may avoid the labor certification process and obtain their permanent residency.

National interest waiver petitions fall under the second preference employment-based immigrant visa category, which is available to individuals with advanced degrees or to individuals who possess exceptional ability in the sciences, arts or business. Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered. It may be demonstrated by meeting at least three of six requirements set forth by the USCIS and must be demonstrated apart from the national interest prong. No job offer is required for the national interest waiver category.

The USCIS has indicated a number of areas it believes to be in the U.S. national interest. These include:

• Improving the U.S. economy;
• Improving wages and working conditions in the U.S. economy;
• Improving education for U.S. children and underqualified workers;
• Improving health care;
• Providing more affordable housing;
• Improving the environment; or
• When an interested government agency supports the request.

This is not an all-inclusive list, and it is possible to establish one's admission as being in the national interest in other ways, incluidng in the development of critical technologies.

The USCIS recently issued a precedent decision that defines this category more clearly. To immigrate under this category, one must prove his or her work: A) Is in an area of substantial intrinsic merit; B) Provides a benefit that is national in scope; and C) Serves the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications.

Critical elements in establishing national interest may also be met by demonstrating one's outstanding contributions through supporting testimonial letters from experts in the field.

Conclusion

Preparation of the I-140 petition package for extraordinary ability, outstanding professors and researchers, and national interest waiver cases, outlined below, is a methodical process that takes more time than preparation of the typical nonimmigrant application. Once finalized, the petition is filed with the appropriate USCIS Service Center. Upon receipt, the USCIS assigns a date to the petition, which serves as the "priority date" for the entire case.

The approved I-140 petition provides the basis for the beneficiary/(employee's) I-485 application for adjustment of status to permanent residence (AOS). When the employee's "priority date" is current, the employee, along with his/her dependants, can file the I-485 application with the USCIS. "Priority dates" are the queuing system for cases under quota. At this time, only persons born in the Peoples Republic of China ("PRC") are required to wait for their priority dates to become current in order to submit their first preference work-based AOS applications, because of per country limitations and backlogs. Currently, persons born in the PRC and India are also required to wait for their priority dates to become current in order to submit their second preference work-based AOS applications.

With the AOS application, BAL will also file requests for travel permission (advance parole) and employment authorization documents (EAD) for the employee and dependants. Once the advance parole application is approved, the employee and dependants will be able to travel outside the United States again. Once the EAD is approved, the employee's dependants will be authorized to work in the United States. With the approval of the AOS application, the employee and dependents become U.S. permanent residents and a green card is issued to them through the mail.

 

Procedure for Extraordinary Ability, Outstanding Researcher/Professor and National Interest Waiver I-140 Immigrant Petitions

Start Beneficiary (employee) forwards to Berry, Appleman & Leiden (BAL) employee resume for evaluation. BAL evaluates resume and develops preliminary case strategy. BAL sends information packet, including BAL strategy worksheet, to employee specifying documentation needed and requesting information. Documents Employee provides requested information, including BAL strategy worksheet and supporting documents. BAL evaluates completed strategy worksheet and advises employee of USCIS requirements, sources of documentation, and style and substance of reference letters. Employee provides draft reference letters. BAL evaluates and finalizes all reference letters for signature. BAL evaluates all documents, performs legal analysis and develops final case strategy. Document Preparation BAL prepares forms and supporting letter documenting qualification of petitioner (employer)/employee for requested classification. BAL forwards forms and supporting letter for employer's review and signature. Employer signs and returns forms and supporting letters to BAL. BAL prepares letter transmitting petition to USCIS, further detailing how employer/employee qualify for requested classification. BAL files immigrant petition with USCIS. USCIS (United States Citizenship and Immigration Service) USCIS reviews petition. BAL tracks petition with USCIS, responds to potential USCIS inquiries and provides status information to employer/employee. USCIS adjudicates petition.