An Alien of Extraordinary Ability, or EB-1A, classification applies to aliens who can demonstrate that they “have risen to the very top of their field of endeavor.” Such candidates may apply for EB1A petition without a labor certification or a job offer (i.e. an employer’s sponsorship). Any alien living in the U.S. or abroad may apply if he/she meets the following requirements:
-Alien has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.
-Alien’s achievements have been recognized in the field through extensive documentation.
To establish that the alien is a top member within his/her respective field, evidence of receipt of an internationally recognized award such as the Nobel Prize or an Academy Award is accepted. However, in the absence of an internationally recognized award, the alien can establish him/herself as an Alien of Extraordinary Ability by providing documentation of any three (3) of the following:
1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence.
2. Membership in associations which require outstanding achievements of their members, as judged by recognized national or international experts in their fields.
3. Published material in professional/major trade publications or major media about the alien and relating to the alien’s work field.
4. Participation as a judge (individually or as a part of a panel) evaluating the work of others.
5. Original scientific, scholarly, or artistic contributions of major significance.
6. Authorship of scholarly articles in professional journals or other major media.
7. Artistic exhibitions/shows.
8. Leading role within an organization/establishment with a distinguished reputation.
9. High salary/compensation for services in comparison to others.
10. Commercial success within the performing arts, as shown by either box office receipt figures or cassette, compact disk, video, or DVD sales figures. The alien must also show that his/her admittance into the United States will substantially benefit the United States in the future.
An “Outstanding Researcher or Professor” EB-1B immigrant visa is for aliens who are internationally recognized as outstanding in a particular scientific or scholarly field. Unlike self-petitioned EB-1A cases, EB-1B cases are employer sponsored. This means the petitioning employer must demonstrate that the alien has outstanding ability as a researcher or professor and has a permanent job offer from the employer. The outstanding researcher/professor alien must have the sponsorship of his/her employer throughout the petitioning process. The employer is the petitioner and the outstanding researcher/professor is the beneficiary for the EB-1B process.
There are three (3) main requirements for someone seeking a petition as an “Outstanding Researcher/Professor”, including:
-International recognition for being outstanding in a specific academic field;
-At least three years of relevant research or teaching experience: Research or teaching experience obtained while in pursuit of an advanced degree, such as a Ph.D., can be counted toward the three year requirement, but only if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. The alien must document his or her work history with letters from current and/or former employers describing work duties and years of employment; and
-A job offer for a permanent research position or a tenured or tenure-track teaching position from the sponsoring employer: Generally, the job offer is given by a university or other similar academic or scientific institution, but it can also be offered by a private employer. If the offer is from a private employer, the employer must have at least three full-time researchers along with accompanying documentation supporting their accomplishments within the field.
As with all employment-based first preference petitions, no Labor Certification is required to obtain an EB-1B immigrant visa. However, the person seeking permanent resident status on the basis of an EB-1B Outstanding Researcher/Professor classification must have the requisite job offer with the sponsoring employer that is filing the petition on the alien’s behalf.
To be recognized internationally as an Outstanding Researcher or Professor in one’s field requires at least two (2) of the following types of evidence:
1. Receipt of major prizes or awards for outstanding achievement.
2. Membership in associations which require outstanding achievements of their members.
3. Published material in professional publications written by others about the alien’s work (more than merely citing the alien’s work).
4. Participation as a judge (individually or as a part of a panel) evaluating the work of others in the same field or concentration.
5. Original scientific, scholarly, or artistic contributions in the field.
6. Evidence of authorship of scholarly books/articles in journals with an international circulation.
The EB-1C immigrant category is among the other various visas in the First Preference category. A First Preference Immigration Petition (EB-1) is an employment-based petition for permanent residence reserved for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports. Immigrant visa numbers are immediately available under the EB-1 category. The first preference category is allotted 40,000 annual immigrant visas. To obtain an EB-1 status, the beneficiary may apply for Adjustment of Status, if they are already in the United States, or through consular processing at a U.S. consular office abroad.
The EB-1C visa is a good way for small or start-up overseas companies to expand their business and services to the United States. This is advantageous to smaller companies because its allows for the transfer of a highly proficient manager or executive employee who has direct knowledge of the company’s operations, allowing the setup of a new branch in compliance with the goals and objectives of the company’s main office.
The Multinational Managerial or Executive EB-1C petition allows international companies to transfer top-level executives and managers to the U.S. as permanent residents.
Requirements for the EB-1C Employer:
-The company must have a qualifying relationship with a foreign company, such as a parent company, branch, subsidiary, or affiliate. These are collectively referred to as qualifying entities.
-The company must conduct business as an employer in the United States and in at least one other country directly or through a qualifying organization in the regular, systematic, and continuous provision of goods or services.
-The company must have been in existence in the United States for at least one year.
Requirements for the EB-1C Employee:
The EB-1C candidate must have been employed for one year within the past three years by the overseas affiliate, parent, subsidiary or branch of the U.S. employer and they must work in the United States in a managerial or executive capacity.
The managerial capacity requirement is met if the alien can prove that he or she personally:
-Manages the organization, department, component or function;
-Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision or the organization;
-Has the authority to hire and fire and make personnel decisions; and
-Exercises direction over day-to-day operations of the activity or function.
The executive capacity requirement is met if the alien can prove that he or she primarily:
-Directs management of an organization, major component, or function;
-Establishes goals and policies;
-Exercises wide latitude in discretionary decision-making; and
-Receives only general supervision from higher executives, the board of directors, or stockholders.
The petition can be filed in this category if the job requires an advanced degree (beyond Bachelor’s degree such as Master’s degree or Ph.D.) and the alien has such a degree or the equivalent (Bachelor’s degree plus five years of progressive experience in the profession. Also called BS+5.) The degree may be from U.S. or equivalent degree from a foreign country. If applying by BS+5, the experience letters from former employers showing that the alien has at least 5 years of progressive experience in the specialty after the Bachelor’s degree are required. The experience from the current employer CAN NOT be used unless that experience is for a different job (different job duties, promotion to manager etc.) than for the job for which the petition is being filed.
Please note that merely having an advanced degree or equivalent (BS+5) is not enough to file the petition in EB2, the job must require it. The alien must be working in a professional occupation such as lawyers, doctors, architects, engineers and teachers.
Premium processing is available.
Following documents must be filed with the petition:
• Approved labor certification, or a request for a waiver of a job offer because the employment is deemed to be in the national interest, with documentation provided to show that the beneficiary’s presence in the U.S. would be in the national interest.
• An official academic record showing that the alien has a U.S. advanced degree or an equivalent foreign degree, or an official academic record showing that the alien has a U.S. bachelor’s degree or an equivalent foreign degree and letters from current or former employers showing that the alien has at least 5 years of progressive post-bachelor experience in the specialty.
Aliens who qualify under this classification are the ones “who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States”.
Exceptional ability means having a degree and expertise significantly above that normally found within the field. Here the standard is “exceptional” and NOT “extraordinary” which comes under EB1.
Following documents must be filed with the petition:
-Approved labor certification, or a request for a waiver of a job offer because the employment is deemed to be in the national interest, with documentation provided to show that the beneficiary’s presence in the U.S. would be in the national interest.
-Documentation of three of the following:
o An official academic record showing that the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability.
o Letters from current or former employers showing that the alien has at least 10 years of full-time experience in the occupation for which he/she is being sought;
o A license to practice the profession or certification for a particular profession or occupation.
o Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability.
o Evidence of membership in professional associations.
o Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.
If the above standards don’t readily apply to the alien’s occupation, comparable evidence may be submitted to establish the alien’s eligibility.
A National Interest Waiver (NIW) petition falls into the employment-based immigration, second preference (EB2) category (As known as EB2 NIW). Normally, a permanent job offer and an approved labor certification are pre-requisites to file an employment-based, second preference immigration petition. However, a National Interest Waiver (NIW) petition requests that the labor certification requirement be waived for the sake of the “national interest of the United States;” thus, allowing an applicant to apply for an NIW immigration petition without a labor certification or a job offer from a U.S. employer.
First, in order to be eligible to file an NIW petition, a beneficiary or applicant must have an “advanced degree” or “exceptional ability” in the sciences, arts or business. The beneficiary must also persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate’s proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest. Each NIW case is adjudicated on its individual merits, but the burden of proof is always on the applicant or beneficiary to establish that exemption from the labor certification will be in the national interest of the U.S.
For an NIW, even if the beneficiary has no employer, he/she may file an NIW petition on behalf of himself/herself. A U.S. employer may also file an NIW petition on behalf of the beneficiary.
The occupations that qualify for a National Interest Waiver are not defined by statute. However, each of these three requirements must be met to qualify for an NIW.
-Work in an area of “substantial intrinsic merit” means work in a field that is valuable to the national interest of the U.S. Research in any scientific field, for example, can be said to have substantial intrinsic merit to the national interest of the U.S. Likewise, a sociologist studying demographic trends relating to the 2010 U.S. Census can argue that she seeks work in an area of substantial intrinsic merit; or an educational policy expert can show that his field has substantial intrinsic merit due to its capacity to improve society through education. This criterion is not difficult to meet.
-The applicant’s work, if successful, benefits the U.S. nationally in scope, means that an applicant’s work cannot have merely a limited regional impact. An applicant who has published their research can always show that their work has a national scope since academic publications are disseminated nationally and internationally. In the absence of publications, an applicant can show that the impact of their work is national in scope. For example, a petroleum engineer can argue that her work impacts the entire U.S. in terms of energy supply and refinery safety.
-National Interest would be adversely affected if a Labor Certification were required for the alien. USCIS interprets this to mean that the benefit of an applicant’s work to the U.S. is so great as to outweigh the nation’s inherent interest in protecting U.S. workers by requiring aliens to undergo the Labor Certification process. This is the most difficult requirement of the three to satisfy; therefore, we will discuss this in more detail below.
PERM, shorthand for Program Electronic Review Management System, was initiated by the Department of Labor to process labor certifications on behalf of U.S. employers looking to hire alien employees. The purpose of this process is to show that:
1. There are not sufficient U.S. workers able, willing, available, and minimally qualified at the time and place of an alien’s entry; and
2. The alien will not displace U.S. workers or adversely affect the wages or working conditions of U.S. workers. This is established by demonstrating that no minimally qualified, able, and willing U.S. worker is available.
The Employment-Based Fourth Preference (EB-4) category is a pathway to US permanent resident status for religious workers and other special immigrant workers who are employees of the U.S. government, Iraqi & Afghani translators in the U.S. armed forces, certain physicians, and others as listed below. Depending on the category, applicants may be self-petitioning or be required to have an employer petition on their behalf.
If you become a U.S. resident due to your marriage to a U.S. citizen, you will get a “conditional” green card that expires in just two years. Within 90 days of this expiration date, you and your spouse are expected to jointly file Form I-751, Petition to Remove the Conditions of Residence, with U.S. Citizenship and Immigration Services (USCIS). Doing so will allow you to remain in the United States. After your application is approved, your conditional resident status will be converted to permanent residence.
But filing this petition and gaining this approval can be difficult if your spouse is physically or emotionally abusive – especially if he or she is using your immigration status, and his or her cooperation in obtaining the green card, as a way to control you. The good news is that the law offers a way to deal with this situation. And after your I-751 is approved and you become a permanent resident, your right to live and work in the U.S. cannot be taken away based on you no longer being with your spouse.
A person who is married to a U.S. citizen of the same-sex can qualify for immigration as an immediate relative of a U.S. citizen, regardless of the place of marriage or current place of residence. Under federal guidelines, USCIS will honor the ‘place of celebration’ when determining eligibility for immigration benefits for same-sex couples; meaning that so long as the marriage was solemnized in a place where such a marriage is legal, USCIS will honor such marriages as valid.
Applicants for U.S. green cards who are afraid to leave the U.S. for their consular visa interview because they might be blocked from return based on their past time spent in the U.S. unlawfully can apply for a “provisional waiver” (also known as a “stateside waiver”) of this unlawful presence ground of inadmissibility.
By applying for a stateside waiver, applicants can get a “yes” or “no” answer from U.S. Citizenship and Immigration Services (USCIS) before departing the U.S. for their visa interview. With a “yes” answer, they can leave the U.S., feeling fairly comfortable that the consular officer will approve the immigrant visa and allow them to return to the U.S. as permanent residents.
If the answer from USCIS is “no,” applicants will at least find out while they’re still with their family in the U.S., not trapped outside for three or ten years. They can potentially reapply. (And, the enforcement authorities have said they do not intend to use this process as a way to identify people for removal – unless they’re criminals or public safety risks.) Or they can take a chance and leave the U.S. for a consular interview and present their waiver application there.
Not everyone who is eligible for a green card is eligible to for this provisional waiver, however. This article discusses the scope of and limitations on eligibility.
The Parents of U.S. citizens are eligible to apply for permanent resident status as immediate relatives, but only if the citizen is 21 years of age or older.
To qualify as a parent of a U.S. citizen, a person must meet the similar test as for the child, except that the citizen can be married and must be over 21 years old. This means that if the U.S. citizen is adopted, the adoption must have been finalized before the child’s 16th birthday, the parent must have legal custody of the child for two years (before or after the adoption), and the child must reside with the adoptive parent for two years (before or after the adoption); and if the U.S. citizen is a stepchild of the alien parent, the current marriage must have been taken place before the child’s 18th birthday.
The only distinction in eligibility between a child in this category and a child of an “immediate relative of a U.S. citizen” is that the child in this category is over 21 years old. That means to qualify as a “child” in this category, the person must be the son or daughter of a U.S. citizen, who is unmarried and over the age of 21. An adopted child qualifies as long as the adoption was finalized before the child’s 16th birthday, the adoptive parents have legal custody of the child for two years (before or after the adoption), and the child resides with the adoptive parents for two years (before or after the adoption). A stepchild qualifies as long as the marriage had occurred before the stepchild’s 18th birthday.
Immediate family members of the married alien child may also apply for a green card with the child. The annual visa allotment available for this preference is 23,400, plus any visas not used by the fourth preference.
This category is designed for the married children of U.S. citizens regardless of his or her age. That means to qualify as a “child” in this category, the person must be the son or daughter of a U.S. citizen, who is married. Adopted child qualifies as long as the adoption was finalized before the child’s 16th birthday, the adoptive parents have legal custody of the child for two years (before or after the adoption), and the child resides with the adoptive parents for two years (before or after the adoption). A stepchild qualifies as long as the marriage had occurred before the stepchild’s 18th birthday.
Immediate family members of the married alien child can also apply for a green card with the child. The annual visa allotment available for this preference is 23,400, plus any visas not used by the first and the second preference.
This category includes the brothers and sisters of U.S. citizens. To apply for a green card for his or her brother or sister, the U.S. citizen must be 21 years of age or older. Furthermore, to qualify as a brother or sister of a U.S. citizen, both the brother or sister and the U.S. citizen must have been children of the same parent.
Immediate family members of the brother or sister may also apply for a green card with the brother or sister of a U.S. citizen at the same time. The annual visa allotment available for this preference is 65,000, plus any visas not used by the first three preferences.