A Practical Guide To Employment-Based Immigration Options

First Employment-Based Preference Priority Workers

I. Employment Based 1st Preference Extraordinary Ability Aliens (EB-1)

This category encompasses those individuals who can demonstrate that they have extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Extraordinary Ability Aliens are those individuals who are a part of "that small percentage" who have risen to the very top of their field of endeavor"

No job offer or labor certification is required under this category. In other words, an applicant can be a "self petitioner". However, a petitioner must submit evidence to show that he/she will continue to work in the US in the area of "extraordinary ability". In other words, one should submit letters from prospective employers, evidence of prearranged commitments for employment such as contracts, or a statement from the individual detailing how he/she intends to continue his/her work in the United States.

Requirements: Extraordinary ability can be evidenced by a major internationally recognized award, such as the Nobel Prize. Absent this, the evidence submitted must satisfy at least three of the following ten standards.

1. Documentation of the receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members as judged by recognized national or international experts in their disciplines or field;

3. Published material about the individual in professional or major trade publications or other major media, relating to the person’s work in the field for which classification is sought. Such evidence must include the title, date, and author of the material, and any necessary translation;

4. Evidence of the individual’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization;

5. Evidence of the individual’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

6. Evidence of the individual’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

7. Evidence of the display of the individual’s work in the field at artistic exhibitions or showcases;

8. Evidence that the individual has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

9. Evidence that the individual has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

10. Evidence of commercial successes in the performing arts, as shown by box office receipts of record, cassette, compact disc, or video sales.

In addition to the above, the regulations also specify that if the above standards do not readily apply to the individual’s occupation, he/she may submit "comparable evidence"to establish that person’s eligibility.

II. Outstanding Professor and Researchers

A. This category requires that an individual enter the U.S. in a tenured or tenure track teaching or comparable research position at a university or other institution of education. The employer may also be a private company with at least 3 full time research employees and which has documented accomplishments in the academic field in which the employment is offered. An "employer" must act as the petitioner and must sign the I-140 petition. As with other groups in the first preference category, no labor certification is required. However, a job offer is a requirement. The Immigration and Naturalization Service requires that the employer submit with the petition an offer of employment in the form of a letter from:

1. A United States university or institution of higher learning offering the individual a tenured or tenure-track teaching position in the person's academic field;

2. A United States university or institution of higher learning offering the individual a permanent research position in the person's academic field; or

3. A department, division, or institute of a private employer offering the individual a permanent research position in the person's academic field. The department, division or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.

It should be noted that research positions must be "permanent", (for an unlimited duration with the expectation of continued employment).

4. In order to qualify as an outstanding professor or researcher, a petition must be accompanied by evidence that the professor or researcher is "recognized internationally as outstanding" in the academic field specified in the petition. Such evidence must consist of at least two of the following six categories;

a. Documentation of the individual's receipt of major prizes or awards for outstanding achievement in the academic field;

b. Documentation of the individual's membership in associations in the academic field which require outstanding achievements of their members;

c. Published material in professional publications written by others about the individual's work in the academic field. Such material must include the title, date, and author of the material, and any necessary translation;

d. 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;

e. Evidence of the individual's original scientific or scholarly research contributions to the academic field; or

f. Evidence of the individual's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

5. Evidence that the individual has at least 3 years of experience in teaching and/or research in the academic field. The regulations state that 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 were such that he or she had full responsibility for the classes taught or if the research conducted toward a degree has been recognized within the academic field as outstanding. Evidence of teaching and/or research experience must be in the form of letter(s) from current or former employer(s) and should include the name, address, and title of the writer, and a specific description of the duties performed by the individual.

III. Second Employment-Based Preference for Exceptional Ability Aliens and Advance Degree Professionals (EB-2)

A. This category encompasses those individuals with advanced degrees in professional fields and persons of "exceptional ability" in the "sciences, arts, or business". As a general rule, a petitioner (employer) must file a Form I-140 petition for an employee beneficiary, accompanied by an approved individual labor certification from the United States Department of Labor. (See separate section on the Labor Certification process). Exceptions to the labor certification process apply for physical therapists and certain specially designated professions. An individual may also seek exemption from the requirement of an employer petitioner and labor certification in the "National Interest". (See Below)

-Advanced Degree: The regulations define an "advanced degree" as any United States academic or professional degree or a foreign equivalent degree above that of a baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in that specialty should be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, an individual must have a United States doctorate or a foreign equivalent.

-Exceptional Ability: The regulations define exceptional ability in the sciences, arts, or business as a degree of expertise significantly above that ordinarily encountered in those fields. To show that an individual is of exceptional ability in the sciences, arts, or business, a petition must be accompanied by at least 3 of the following:

1. An official academic record showing that the individual 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;

2. Evidence in the form of letters from current or former employers showing that the individual has at least ten years of full-time experience in the occupation for which he/she is being sought;

3. A license to practice the profession or certification for a particular profession or occupation;

4. Evidence that the individual has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

5. Evidence of membership in professional associations; or

6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations;

7. The individual may submit comparable evidence if the above standards do not readily apply to that person's occupation.

B. The "National Interest Waiver"

1. As a general rule EB-2 petitions require an offer of employment by an employer who is required to file a petition on an individual's behalf. An individual, however, may seek an exemption from the job offer requirement and file his/her case as a "self-petitioner" if the INS can determine from the materials submitted that an exemption would be in the "national interest". In that case a labor certification and job offer are not required.

National Interest Waiver cases have been filed in the past with great success, but are becoming increasingly difficult because of more rigorous INS standards. Several factors have been used in determining whether a case could be granted in the national interest. Those factors include: 1) Improvement of the economy; 2) Improving wages and working conditions of U.S. workers; 3) Improving education and training programs for U.S. children and underqualified workers; 4) Improving health care; 5) Providing more affordable housing; 6) Improving the U.S. environment and increasing productivity of U.S. resources; 7) Requests from an interested US governmental agency.

2. In August of 1998, the INS' Administrative Appeals Office (AAO) issued a "precedent decision" which imposes certain additional thresholds to be met in national interest waiver cases. That decision, entitled - IN RE: New York State Department of Transportation (NYSDOT), is enclosed and should be closely reviewed in determining whether to file under the National Interest category. Under the NYSDOT test, a number of important factors must be demonstrated in a national interest waiver case, including that:

a. An individual seeks employment in an area of "substantial intrinsic merit";

b. The individual's work must have a benefit which will be "national in scope";

c. The individual must serve the national interest to a "substantially greater degree" than would an available U.S. worker having the same minimum requirements. A determination is made whether the national interest would be "adversely affected if a labor certification would be required for the alien. In evaluating an individual's "prospective" benefit, the INS has stated that it will consider a person's "past record" to see if it justifies projections of future benefits to the national interest.

Since national interest waiver evidentiary standards are "evolving", it is of extreme importance that individuals consult an attorney to determine whether they qualify for this once useful EB-2 category. As with any other employment-based immigrant visa category, it is of the utmost importance that an individual gather all possible evidence and documentation demonstrating achievements and original work in his/her field, so that a proper and productive analysis can be made by the attorney preparing the case. Specific evidence of past achievements and objective letters of support from eminent experts in their field of specialty will need to be prepared and are quite important (as are citations of their original scientific or academic work). If prepared properly, the national interest waiver is still a very viable option for those individuals who are able to demonstrate suitable qualifications, substantial past achievements, and future contributions in their field which are in an area of intrinsic merit and are in the U.S. national interest.