Immigrant Visas and Legal Permanent Residence

EXTRAORDINARY ABILITY PETITION​

The Extraordinary Ability Petition, or “EB1” as it is often referred to, is reserved for individuals with the highest level of achievement in their career. EB1 applicants must demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. 

This means the EB1 petition encompasses a large field of endeavors but in recent years has also become subject to intense scrutiny by the USCIS. No employer is required for an EB1 petition. An individual seeking this classification can provide evidence of a one-time achievement in their field (Nobel prize or equivalent) or alternatively they must provide documentation from three categories in a “menu” of categories of evidence provided for in the regulations. 

That list of evidence includes:

• Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
• Evidence of your membership in associations in the field which demand outstanding achievement of their members;​
• Evidence of published material about you in professional or major trade publications or other major media;​
• Evidence that you have been asked to judge the work of others, either individually or on a panel;​
• Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;​
• Evidence of your authorship of scholarly articles in professional or major trade publications or other major media;​
• Evidence that your work has been displayed at artistic exhibitions or showcases;​
• Evidence of your performance of a leading or critical role in distinguished organizations;​
• Evidence that you command a high salary or other significantly high remuneration in relation to others in the field;​
• Evidence of your commercial successes in the performing arts;​

OUTSTANDING RESEARCHER IMMIGRANT PETITION​

The “Outstanding Researcher” classification allows employers to file an Immigrant Petition on behalf of individuals who have a tenure track or comparable job offer, at least 3 years’ experience in teaching or research in an academic area and international acclaim in their field of expertise. The regulations of the United States Citizenship and Immigration Services (USCIS) provide a framework for petitions seeking to classify an individual as having international recognition for outstanding achievements in a particular academic field. In addition to 3 years’ experience, an applicant seeking this classification must provide documentation from two categories in a “menu” of categories of evidence provided for in the regulations.

That list of evidence includes:

• Evidence of receipt of major prizes or awards for outstanding achievement;​the field which demand outstanding achievement of their members;​

• Evidence of membership in associations that require their members to demonstrate outstanding achievement;​
• Evidence of published material in professional publications written by others about the alien’s work in the academic field;​
• Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;​
• Evidence of original scientific or scholarly research contributions in the field;​
• Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field.​

OUTSTANDING RESEARCHER IMMIGRANT PETITION​

Section 203(b)(2) of the Immigration and Nationality Act provides an Immigrant visa route for aliens holding advanced degrees or possess exceptional ability in the sciences, arts or business who will also substantially benefit the national interest of the United States. The law is silent on the definition of the national interest benefit, but case law (See Matter of Dhanasar https://www.justice.gov/eoir/page/file/920996/download) has provided a clear path for immigrants who may not fall into traditional EB1 or labor certification routes, as their qualifications may not be traditional or scholarly but present unique benefits to the United States. NIW Petitions focus on three distinct areas that must be demonstrated by a preponderance of the evidence:

1. That the foreign national’s proposed endeavor has both substantial merit and national importance;
   • The guidance of what constitutes substantial merit is very broad and includes the following nonexclusive list of endeavors: “business, entrepreneurialism, science, technology, culture, health, or education.” Economic impact is a positive factor, but not determinative. Research for the advancement of knowledge in a certain area is highlighted by the USCIS as a field of substantial merit and national importance.
2. That the foreign national is well positioned to advance the proposed endeavor;
   • This criterion is met by evidence that the foreign national has the background and ability to pursue their endeavor.
3. That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
   • USCIS employs a flexible test regarding the third prong of evidence that takes into consideration many factors, and including the following:
     • In light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification;
     • Whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions;
     • Whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

Schedule A, Group 2​

An often under used category for individuals with exceptional talent in their field is the Schedule A Group 2 petition. Involving Department of Labor Regulations and Immigration regulations this petition is an employer sponsored application obtained via a streamlined labor certification that requires the employer to submit specific evidence that the beneficiary of the petition possesses “exceptional ability”, which is defined as “recognized outstanding performance well above the standard for professional competence in the occupation.” The fields of endeavor for Schedule A Group 2 applications are broad including “fields of knowledge which are commonly offered for study in college and university” despite USCIS efforts to limit the category to scientists and artists.

Applicants who are applying in the sciences or arts (not including performing arts) must satisfy a regulatory three prong test that requires demonstration of the following:

1. Widespread acclaim and international recognition accorded by recognized experts;
2. Documentation confirming that the alien’s work during the past year did, and the alien’s intended work will, require exceptional ability; and
3. Confirmation that the alien meets at least two of the seven regulatory criteria, which include the following:
   • Documentation of the alien’s receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought;
   • Documentation of the alien’s membership in international associations in the field for which certification is sought, which requires outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;
   • Published material in professional publications about the alien, relating to the alien’s work in the field for which certification is sought, which shall include the title, date, and author of such published material;
   • Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which certification is sought;
   • Evidence of the alien’s original scientific or scholarly research contributions of major significance in the field for which certification is sought;
   • Evidence of the alien’s authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation;
   • Evidence of the display of the alien’s work, in the field for which certification is sought, at artistic exhibitions in more than one country

Applicants who are applying under the performing arts category must satisfy a regulatory two prong test that requires demonstration of the following:

1. Documentation confirming that the alien’s work during the past year did, and the alien’s intended work will, require exceptional ability; and
2. Confirmation that the alien meets at least one of the seven regulatory criteria, which include the following:
   • Documentation of current widespread acclaim and international recognition, and receipt of internationally recognized prizes and awards for excellence;
   • Published material by or about the alien, such as critical reviews or articles in major newspapers, periodicals, or trade journals;
   • Evidence of earnings commensurate with the claimed level of ability;
   • Playbills and star billings;
   • Confirmation of the outstanding reputation of theaters, concert halls, night clubs, and other establishments where the alien has appeared or is scheduled to appear;
   • Confirmation of the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations where the alien has performed during the past year in a leading or starring capacity.
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3. 1.  

Permanent Employment Certification or the “PERM” Process

An offer of employment in the U.S. may open the door to permanent residence provided the immigrant will not replace an American worker. Permanent Employment Certification via the Department of Labor’s online PERM system is a mechanism to test the labor market to make sure there will be no displacement of qualified U.S. workers by the permanent employment of the immigrant. The Labor Certification or “PERM” process requires an employer to engage in extensive recruitment for the position to be offered to the immigrant. The PERM recruitment steps require that an employer must:

• Post a notice of the position for 10 business days at the place of employment.
• Open a 30-day job order with the State Workforce Agency (SWA)
• Place newspaper advertisements on two different Sundays in the newspaper of general circulation for the area of intended employment.
• If the position is considered “professional” by the Department of Labor (DOL) three additional recruitment steps must be taken. Options include:
  • Job fairs
  • Posting on the employer’s web site
  • Posting on another job search web site
  • On-campus recruiting
  • Recruitment through trade or professional organizations
  • Contracts with private employment firms
  • Employee referral programs with incentives
  • Notices at campus placement offices
  • Local and Ethnic Newspapers
  • Radio and Television Advertisements

Prevailing wage

The employer must offer the proposed permanent position at 100% of the prevailing rate of pay for the employment opportunity in the area of intended employment. The DOL determines the prevailing wage via application upon review of the position’s details. DOL prevailing wage review is extensive and can take some time.

Processing and Audits

The Department of Labor processes PERM applications online and the system is based on attestations by the employer. Accordingly, evidence is submitted online unless requested. If the Department of Labor conducts an audit of the PERM application all recruitment evidence including details of all potential applicants must be supplied to the DOL. Employers must also retain PERM files for five years should the Department of Labor chose to audit the file at a later point.

PERM Certification

The day the application is received by the Department of Labor becomes the “priority date” for issuance of an immigrant visa to the PERM beneficiary. If the PERM is certified then the applicant can use that priority date moving forward with their Employer based immigrant petition and application for adjustment of status or immigrant visa application as appropriate.