Multi-National Executives and Managers
A multinational manager or executive is eligible for priority worker status provided the following conditions are met:
He or she has been employed outside the U.S. in the three years preceding the petition for at least one year by a firm or corporation and seeks to enter the U.S to continue service to that firm or organization.
The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
The petitioner must be a U.S. employer, doing business for at least one year, that is an affiliate, a subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad.
Please note that the above are only general guidelines. If you wish to discuss your eligibility as a petitioner or beneficiary under this category, please e-mail the individual's detailed resume with a brief description of the company to heller@hilglaw.com.
Outstanding Researchers
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 a job offer for: 1) a tenured or tenure - track position within a university or institution of higher education to teach in the academic area; 2) a comparable position with a university or institution of higher education to conduct research in the area; or 3) a comparable position to conduct research for a private employer.
An individual may not self-petition under this category. A qualified US employer must file the immigrant visa petition, and a permanent job offer is 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:
- 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 others 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
It is insufficient to simply meet two of the six regulatory criteria. The overall evidence must prove international recognition as defined by the USCIS.
Please note that the above are only general guidelines. If you wish to discuss your eligibility as a petitioner or beneficiary under this category, please e-mail the individual's detailed c.v. with a brief description of the employer to heller@hilglaw.com.
Extraordinary Aliens/National Interest Waivers (Self-Petition Allowed )
These are the only categories in which self-petition is allowed. In these cases, a formal job offer is not required at all (and can therefore be processed without a labor certification).
This first preference employment-based immigrant visa category allows an individual with extraordinary ability in the sciences, arts,education, business, or athletics to qualify for a green card. The alien's extraordinary ability can be demonstrated by 1) sustained national or international acclaim as evidenced through extensive documentation; 2) the individual seeks to enter the United States to continue work in the area of extraordinary ability; and 3) his/her entry will substantially benefit prospectively the United States.
The USCIS defines "extraordinary ability" as "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor," as proven by "sustained national or international acclaim" and that one's achievements have been recognized in the field of expertise.
For this elite category, one may qualify by demonstrating a one-time achievement (such as receipt of a major, international recognized award). An example of this type of one-time achievement includes receipt of the 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. The USCIS considers the following types of evidence in evaluating whether an individual qualifies under the extraordinary ability category:
- Documentation of the receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of 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 has commanded a high salary or other significantly high remuneration for services, in relation to others 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.
In addition to meeting three of the ten regulatory criteria, sustained international or national acclaim needs to be proven. The overall evidence must demonstrate that his/her achievements in his/her field have been recognized as extraordinary, and therefore these petitions are generally submitted with voluminous documentation. This category is an extremely elite category and as such, only the very top in their respective field will successfully qualify.
Similarly, a person whose immigration is in the national interest of the United States may avoid the labor certification process and obtain their permanent residency.
National interest waiver petitions fall under the second preference employment-based immigrant visa category, which 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 may be demonstrated by meeting at least three of six requirements set forth by the USCIS and must be demonstrated apart from the national interest prong.
The USCIS has indicated a number of areas it believes to be in the U.S. national interest. These include:
- 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 one's admission as being in the national interest in other ways, including in the development of critical technologies.
The USCIS recently issued a precedent decision that defines this category more clearly.
To immigrate under this category, one 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.
Critical elements in establishing national interest may also be met by demonstrating one's outstanding contributions through supporting testimonial letters from experts in the field.
Please note that the above are only general guidelines. If you wish to discuss your eligibility under the Extraordinary Ability Alien or National Interest Waiver categories, please e-mail your detailed c.v. with a brief description of your situation to heller@hilglaw.com.
Professionals and Skilled Workers (Immigration after labor certification)
Although this is the most widely applicable and used category, it is also procedurally more complex because to use this category, the petitioner (employer) must first obtain a labor certification from Department of Labor. Obtaining the prerequisite labor certification is our true area of specialization, and we have successfully processed cases in every Department of Labor region all over the nation.
Among several ways of applying for permanent residence ("green card" status), the most common method is through labor certification. This classification includes:
- Aliens with at least two years of experience as skilled workers;
- Professionals with a baccalaureate degree; and
- Other workers with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position offered and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated U.S. workers.
Generally, this will be done through the process of RIR (Reduction in Recruitment) labor certification, which is issued and regulated by the U.S. Dept. of Labor (DOL).
One very common misunderstanding about labor certification is that it is about the alien employee and not the company. Conceptually, these cases are not about the alien. The employer submits the application, and DOL certifies the position. In this process, the key issue is showing and establishing to the DOL that a 'real-world' pattern of recruitment has taken place for six months immediately preceding filing and that the company truly cannot find qualified, able and willing U.S. applicants, or at least cannot find enough of them, to fill all the job openings.
Our job, as immigration counsel, is to help you organize and coordinate these efforts so that a proper 6-month pattern can be shown and an approvable RIR case filed and certified on behalf of a foreign employee. In the end, it must be clear to DOL that giving the alien a 'green card' will not adversely affect the U.S. labor market.
Once the labor certification is approved, it provides the basis for the employer to file an I-140 petition with USCIS. At this time, with the change in the immigration law in 2002, we can now file the employee's and the dependent family's I-485 application concurrently with the I-140 petition. This means the alien worker can also apply and obtain Employment and Travel Authorization even before the approval of the I-140 immigration petition.
Please note that the above are only general guidelines. If you wish to discuss your eligibility as a petitioner or beneficiary under this category, please e-mail the individual's detailed resume with a brief description of the company to heller@hilglaw.com.
Religious Workers
To qualify as an EB-4 special immigrant religious worker, the beneficiary must be a member of a religious denomination that has a non-profit religious organization in the United States, must have been a member of this religious denomination for at least two years before applying for admission to the United States, and must be entering the United States to work:
- As a minister or priest of the religious denomination;
- In a professional capacity in a religious vocation or occupation for the religious organization (a professional capacity means that a U.S. baccalaureate degree or foreign equivalent is required to do this job); or
- In a religious vocation or occupation for the religious organization or its nonprofit affiliate. (A religious vocation means a calling or devotion to religious life. Taking vows can prove that you have a calling to religious life. A religious occupation is an activity devoted to traditional religious functions. Examples of religious occupations include (but are not limited to) cantors, missionaries, and religious instructors.)
Importantly, the beneficiary must have been performing this religious work for the past two years.
Please note that the above are only general guidelines. If you wish to discuss your eligibility as a petitioner or beneficiary under this category, please e-mail the individual's detailed resume with a brief description of the religious organization to heller@hilglaw.com.
The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.
