Extraordinary Ability, Outstanding Researchers/Professors, Multinational Managers/Executives & National Interest Waivers Petitions:
Fast Track Alternative to Labor Certification
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”). Direct I-140 Immigrant Visa Petitions may be filed for the following categories of individuals:
Extraordinary Ability Immigrants (EB-1)
Outstanding Researchers/Professors (EB-1)
Multinational Managers/Executives (EB-1)
National Interest Waivers (EB-2)
Extraordinary Ability Immigrants
Extraordinary ability immigrants fall under the first preference employment-based immigrant visa category (EB-1). The USCIS defines workers to extraordinary ability as those who can show 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.” These are individuals who are of “that small percentage who have risen to the very top of the field of endeavor.”
An individual may self-petition under this category, as no offer of employment is required. However, the individual must demonstrate that he/she will continue to work in the field of extraordinary ability.
An immigrant may qualify under this category by demonstrating a one-time achievement (such as receipt of a major, international recognized award), such as the receipt of a 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. Such evidence must include at least three of the following types of evidence showing that the individual has been recognized as having extraordinary ability in the given field:
- Documentation of the receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field or 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 had commanded a high salary or other significantly high remuneration for services, in relation to other 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.
This category is an extremely elite category and only the very top in their respective field usually are deemed to qualify under current USCIS standards of review.
Outstanding Professors and Researchers
The outstanding professor and researcher category is also a first preference employment-based immigrant visa category (EB-1).
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 an off of employment for a permanent research position. The job offer could be for: 1) a tenured or tenured-track position within a university or institution of high education to teach in the academic area; 2) a comparable position with a university or institution of high 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 if 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. An individual must meet at least two of the six articulated criteria. However, it is usually not enough to simply meet two of the six regulatory criteria:
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 other 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.
Multinational Managers or Executives
Managers or executives of multinational companies (EB-1) are eligible for permanent residence. The Multinational Manger category applies to intracompany transferees who, within the three years preceding initial entry into the United States, were employed outside of the U.S. continuously for at least one year in a managerial or executive capacity, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial or executive capacity. The multinational manager petition requires clear documentation of the qualifying relationship of ownership and control between the U.S. and foreign office.
A multinational manager or executive is eligible for priority worker permanent resident status if:
He or she is employed outside the United States with an affiliate, parent, subsidiary or branch of the U.S. petitioning organization in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition; or
If the foreign national is already present the United States, he or she has been employed with an affiliate, parent, subsidiary or branch of the U.S. petitioning organization in a managerial or executive capacity during one of the three years preceding entry to the United States as a non immigrant; and
The foreign national if or will be employed in a managerial or executive capacity by the petitioning organization in the United States.
An employee is considered managerial where he or she;
Manages the organization or department, subdivision, function or component of the organization;
Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, of a department, or subdivision of the organization;
Has the authority to hire, fire, or recommend similar personnel actions (such as promotion or leave authorization) if another employee or other employees are directly supervised; and
Exercises discretion over day-to-day operations of the activity or function for which the employee.
An employee is considered executive where he or she:
Directs the management of the organization or a major component of function of the organization;
Establishes the goals and policies of the organization, component, or function;
Exercises wide latitude in discretionary decision-making; and
Receives only general supervision or direction from higher level executives.
An employee is not considered a manger or executive merely on the basis of the number of employees that he/she supervises, directly or indirectly. The USCIS take into account the reasonable needs of the organization, the overall purpose of the company and function, and the company’s stage of development in determining whether a position qualifies. First-line supervisors generally are not considered managers or executives, without other evidence of their qualifications. Managers of an essential function known as iFunctional Managersi may also qualify for the L-1A category, but must be at a senior level with respect to the function managed, must have substantial discretionary, day-to-day authority over the function managed, and must be primarily engaged in fulfilling management duties.
National Interest waiver Immigrants
National interest waiver petitions fall under the second preference employment-based immigrant visa category (EB-2). This 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 is demonstrated by meeting at least three of six requirements set forth by the USCIS and must be demonstrated apart from the national interest prong. Letters of recommendation or testimonial letter from other experts in the field who can attest to the beneficiary’s expertise in a particular field are often critical in demonstrating the national interest by establishing the individual’s outstanding contributions no job offer is required for the national interest waiver category. And therefore, an individual may self-petition.
An individual can demonstrate U.S. national interest by showing that their field involves:
Improving the U.S. economy;
Improving wages and working conditions in the U.S. economy;
Improving education for U.S. children and under qualified 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 national interest in other ways, including the development of critical technologies.
A precedent decision articulates the following three prongs that must be satisfied to qualify for this category. The individual must prove his or her work: 1) is in an area of substantial intrinsic merit; 2) provides a benefit that is national in scope; and 3) serves the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications.
Preparation of the I-140 petition package for extraordinary ability, outstanding professors and researchers, and national interest waiver cases, requires voluminous documentation. Upon completion, 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” until the beneficiary obtains permanent residence.
The I-140 petition provides the basis for the beneficiary/ (employee’s) I-485 application for adjustment of status to permanent residence (AOS).
Please note that the above listed information is not intended to be a substitute for specific legal advice regarding an individual matter. We strongly encourage you to work closely with qualified legal counsel when pursuing any immigration benefits. If we can be of further assistance to you, please contact our office via phone at (408) 567-9445 or via email at email@example.com