 Complex Business Visas
Certain highly qualified individuals may apply for Green Cards without the need for labor certification. In some cases, they may also apply for non-immigrant status without the need for an H-1B. Here is a detailed summary of these visa categories and their requirements:
EB-11 Persons of Extraordinary Ability (immigrants) and O-1 Persons of Extraordinary Ability (nonimmigrants)
Persons of extraordinary ability in the Sciences, Arts, Education, Business, or Athletics may be eligible to obtain either an approved employment based immigrant visa petition (EB-11) or a nonimmigrant visa for an initial period of up to three years (O-1).
The EB-11 category is
one of the two categories for which an individual may self-petition as an immigrant. No offer of employment is required and no labor certification is required.
An O-1 nonimmigrant does require a sponsoring employer. However, the O-1 visa has three big advantages
over other nonimmigrant work visas. First, it can be issued notwithstanding an unfulfilled two-year home residency requirement from a prior stay as a J-1. As a result, the visa is popular with physicians and scientists who first came on a J-1 and are now seeking to extend
their stay in the U.S. Second, there is no college degree requirement. Hence, if the alien's field of expertise is one in which one can rise to the top without a four-year college degree (e.g., arts, athletics) the O-1 can serve as a substitute for an H-1B. Finally, an O-1
can be issued without regard to the six year "cap" on H-1B duration of stay, so the visa is popular with highly skilled professionals who are running out of H-1B time.
An applicant for EB-11 or O-1 status must demonstrate "sustained national or international acclaim"
in his or her field of expertise. For this category, evidence may include proof of a one-time achievement, which would be a major internationally recognized award (e.g., Nobel Prize). If the applicant is not the recipient of such an award, then documentation of any
three of the following is required:
1.) Receipt of lesser nationally or internationally recognized prizes or awards;
2.) Membership in associations in the field for which classification is sought which require outstanding achievement of their members as judged by
recognized national or international experts;
3.) Published material about the person in professional or major trade publications or other major media;
4.) Participation as a judge of the work of others
5.) Evidence of original scientific, scholastic, artistic,
athletic, or business-related contributions of major significance;
6.) Authorship of scholarly articles in the field;
7.) Artistic exhibitions or showcases;
8.) Performance or cultural role organizations or establishments that have a distinguished reputation;
9.)
High salary or remuneration in relation to others in the field or
10.) Commercial success in the performing arts.
Evidence demonstrating three of the ten categories may not be enough. The
CIS often requests additional information regarding the
individual's qualifications for this category, and evaluates how strongly the evidence establishes each category. Therefore, extensive documentation of as many categories as possible is required. Evidence from neutral sources, such as leading experts in the field who haven't
worked with the applicant, is invaluable.
EB-12 Outstanding Professors and Researchers
Outstanding Professors and Researchers whose employers are ready, willing, and able to sponsor them, may qualify for the EB-12 category immigrant visa category.
In order to qualify for this category, an individual must be recognized internationally as outstanding in a specific
academic area. Additionally, the individual must have three years of experience in teaching or research in the particular academic area. Experience in teaching and research while working on advanced degrees may be used to meet this requirement, provided that the degree is
acquired and that the individual had full responsibility for the class taught, or that the research was recognized as outstanding in the academic field.
For Outstanding Professors, the applicant must be in a tenured or in a tenure track teaching position. If the
individual is applying as an Outstanding Researcher, he or she must be in a permanent research position at a university or institution of higher education. If the individual is to be conducting research with a private employer, that employer must employ at least three
individuals in full-time research activities; and the department, division, or institution must have achieved documented accomplishments in that field of research.
Evidence of recognition as outstanding in the academic field must include at least two of the following:
1.) Receipt of major prizes or awards for outstanding achievement;
2.) Membership in an association that requires outstanding achievement;
3.) Published material in professional publications written by others about the applicant's work;
4.) Evidence of the
person's participation as a judge of the work of others;
5.) Evidence of original scientific research;
6.) Authorship of scholarly books or articles in the field.
When
CIS evaluates the evidence presented, it will consider whether the applicant published in a
"vanity" press, if the individual is merely quoted in a footnote without any type of evaluation, or if the material presents a negative or neutral review of the applicant's work. The
CIS pays attention to the impact of the entire presentation, with a view to whether it
demonstrates outstanding achievement. Testimony from leading scholars who are not personal acquaintances of the applicant is of great value.
While no labor certification is required for this category, a written offer of permanent employment is required.
National Interest Waivers (EB-21 without labor certification)Of all the immigrant visas that avoid the necessity of labor certification, National Interest Waivers have the lowest threshold for professional achievement. The applicant need
hold only an advanced U.S. degree or its equivalent, or be of
"exceptional ability" in his field, which is defined as substantially more skilled than the average member of his field. (As a practical matter,
CIS frowns on applications where the applicant is still studying, and the lack of a completed Ph.D. is difficult to
overcome if the applicant works in a scientific field). The I-140 is submitted without an approved labor certification, and instead, extensive documentation of two other factors is assembled in an effort to convince the
CIS to waive labor certification.
The first
factor is whether a waiver would "serve the national interest." The application must demonstrate how the applicant's immigration would benefit the entire U.S. with regard to:
1.) Improving the U.S. economy (including creating new lines of industry, improving the
efficiency of existing lines of industry, stimulating exports, or building infrastructure);
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 for young and/or older, poorer, U.S. residents;
6.) Improving the environment of the United States and making more productive use of natural resources; or
7.) Benefiting an interested U.S. Government agency.
The other area that NIW applications must address is the question of why the applicant should not be required to get a labor certification. Seven points that are relevant.
The first point is how the benefits of your work are national in scope, and do not harm one part of the country to benefit another. Examples include improving infrastructure; improving health care or the environment (such as by performing medical research and showing that the research is being used or built
on widely); making technological advances that are or will be enjoyed by the nation as a whole (such as by researchers across the country using or building on your work); or working on a U.S. government project.
The second point is how the field in which you work is
of substantial intrinsic merit. Most professions will meet this test by simply describing in plain English how their profession makes people's lives better.
The third point that must be addressed is how you are qualified for your position.
Fourth, you need to
discuss how the national interest would be adversely affected if a labor certification were required. Specifically, you need to show that it would be contrary to the national interest to deprive your employer of your services in order to give the job to a minimally qualified
U.S. worker. This is usually accomplished by arguing that you will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The best way to show this is to talk about how the project
on which you are working would be disrupted if you left. Could the project stand to lose you as a result of the amount of time it would take to get a
replacement up to speed (such as where a researcher is lost and a replacement would have to learn and possibly continue cutting edge research)? Do you possess proprietary knowledge that you use on the project that no one (or no else who would be interested in the job, such as
fellow project members) has, such that you really cannot be replaced? Is grant money or a government contract tied to your personal involvement? Do you have unique, hard to quantify characteristics that make you especially invaluable?
Fifth, you must establish that a
national interest waiver is not being pursued based solely on a shortage of qualified workers in your field, since a labor certification would succeed in such a case. This will generally be covered by the parts of the letter talking about your level of achievement and the
disruption threatened by your departure. Alternatively, you could show that minimally qualified U.S. workers have held the position and failed because they lacked something that you have.
Sixth, if you hold a patent or are responsible for some innovation, your letters
of support should talk about it and how it has benefited your project.
Seventh, and most importantly, your letters need to demonstrate that you have a past record of specific prior achievement that justifies projections of future benefit to the national interest.
Specifically, you must show that you have the ability to serve the national interest to a substantially greater extent than the majority of your colleagues. You should also demonstrate your influence on your particular field of employment as a whole.
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