EXTRAORDINARY ABILITY APPLICANTS,
NATIONAL INTEREST WAIVERS,
OUTSTANDING PROFESSORS AND RESEARCHERS,
INTERNATIONAL EXECUTIVES/MANAGERS,
AND NURSES/PHYSICAL THERAPISTS
 

Ordinarily an applicant for permanent residence (resulting in a "green card") based upon employment must establish that there are no minimally qualified U.S. workers available for the position offered to the applicant. Briefly, this process requires the applicant's employer to seek a certification from the U.S. Department of Labor that the employer has been unable to find a qualified U.S. worker after having advertised and extensively recruited for the position which will be offered to the applicant. This procedure is time consuming and expensive and may become more difficult if the Department of Labor changes its procedures based on its perceptions that U.S. workers may increasingly be available.

Certain groups of applicants can avoid this process. They bypass the U.S. Department of Labor entirely and file their cases directly with the Bureau of Citizenship & Immigration Service ("BCIS").

This article does not address two groups of applicants who can also avoid the labor certification process: immigrant religious workers, including "ministers" and immigrant entrepreneurs.

The following applicants are exempted from the labor certification requirement:

Extraordinary Ability in Sciences, Arts, Education, Business or Athletics

Outstanding Professors and Researchers

Multinational Executive or Managerial Transfer

Exceptional Ability Applicants or Professional with an Advanced Degree & “National Interest Waiver”

“Schedule A”:Employment Determined By Department of Labor to in Permanent Shortage

Nurses & Physical Therapists

EXTRAORDINARY ABILITY IN SCIENCES, ARTS, EDUCATION, BUSINESS OR ATHLETICS
 

The first group of EB-1eligble applicants consists of those who can demonstrate that they possess "extraordinary ability in science, art, education, athletics or business." This high standard requires the presentation of evidence that the applicant has received "sustained national or international acclaim" as shown by:

• a one time achievement award such as a major internationally recognized award, e.g. a Nobel Prize
  
  
  OR
  
  
  
• documentation in at least three of the following ten groups which include
  
  
  • lesser known international prizes or awards
  • membership in associations which require outstanding achievements
  • published material about the applicant
  • the applicant's participation as a judge of others' work in the field
  • original contributions of significance in the field
  • display of applicant's work at exhibitions, etc.
  • authorship of scholarly articles
  • performance in a leading or critical role for organizations with distinguished reputation
  • high salary or other remuneration
  • commercial successes in the performing arts

In addition, the regulations defining EB-1 criteria contain a "catch all" clause allowing applicants who believe that these categories of evidence do not "readily apply to his or her occupation" to submit additional relevant documentation.

OUTSTANDING PROFESSORS AND RESEARCHERS
 

The second group of EB-1 applicants includes those who meet the definition of "Outstanding Professors or Researchers." Outstanding Professors or Researchers must be recognized internationally as outstanding in a specific academic field and have at least three years of teaching or research experience. Although the definition for this group suggests that the standard for entry into this group is as high as for "extraordinary ability" applicants, in practice, the BCIS has been much more generous in its application of the standard for inclusion within the group of Outstanding Professors or Researchers. (Of course, this practice is subject to change; the BCIS could apply a more restrictive definition for entrance into this group than it has previously.)

To obtain BCIS approval of a petition for outstanding researcher/professor classification, it is essential to submit evidence of international recognition as shown by documentation in at least two of the following six groups:

• receipt of major prizes or awards
• membership in associations requiring outstanding achievements
• published material about the applicant's work (e.g. a summary or print out of those articles which have cited the applicant's research and his or her articles may be used)
• participation as a judge of others' work, either individually or on a panel (e.g., evidence that the applicant has acted as a peer reviewer, reviewing articles for publication)
• original or scholarly research contributions to the field
• authorship of scholarly books or articles
   

This category requires proof of three years (generally postdoctoral or post Master's degree) research or teaching experience. Letters from the applicant's advisor(s), university personnel office, or manager(s) should confirm the dates of employment as well as describe the research or teaching in which the applicant was involved. The letters should also describe the applicant's contributions to the academic or research field and explain why the contributions are original, scholarly and significant. In other words, these letters should be in the nature of letters of recommendation and will supplement other letters addressing the originality or significance of the contributions to the field and the scholarly quality of the publications.

There is also an additional requirement for the prospective employer of an outstanding researcher/professor. If the employer is a U.S. university or institution of higher learning, it must submit a letter offering the applicant a tenure track or other permanent position. If the prospective employer is not a U.S. university or institution of higher learning or public research institution, it must also offer a permanent position and show that it has made significant contributions in an academic field and that it employs at least three persons in full time research positions.

MULTI-NATIONAL EXECUTIVE OR MANAGERIAL TRANSFER
 

The third group of applicants who can immigrate in the EB-1 category includes executives or managers of multinational companies. The requirements for classification in this group are very similar to the requirements for L-1 executive or managerial nonimmigrant visa classification discussed elsewhere. (The applicant does not need to be present in the United States in L classification to qualify for the EB1 category, however. He or she may be outside of the United States or present in the United States in another nonimmigrant visa classification.)

Both the employer and applicant must meet certain eligibility requirements to qualify. The applicant is eligible if:

• he or she was employed outside the United States for one year within the three years prior to his or her entry to the United States  
• in a managerial or executive capacity
 
• with the same company, a branch or subsidiary of the company
 
• with which he or she is employed or will be employed in the United States
 
• in a managerial or executive capacity.

An "executive capacity" is defined as an assignment within an organization in which the applicant primarily (1) Directs the management of the organization or a major component or function of the organization; (2) Establishes the goals and policies of the organization, component, or function; (3) Exercises wide latitude in discretionary decision making; and (4) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

"Managerial capacity" is an assignment within an organization in which the applicant primarily (1) Manages the organization, or a department, subdivision, function, or component of the organization; (2) Supervises and controls the work of other supervisory, professional, or managerial employees, OR manages an essential function within the organization, or a department or subdivision of the organization; (3) If another employee or other employees are directly supervised, has the authority to hire and terminate or recommend those as well as other personnel actions (such as promotion and leave authorization), or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (4) Exercises direction over the day-to-day operations of the activity or function for which the applicant has authority.

EXCEPTIONAL ABILITY APPLICANTS OR PROFESSIONAL WITH AN ADVANCED DEGREE & A "NATIONAL INTEREST WAIVER"
 

The majority of applicants who immigrate under the second employment-based immigrant category (EB-2) will need to obtain a labor certification. But a smaller group of applicants meeting the requirements for inclusion into the EB-2 category can avoid the labor certification process. In order to qualify under this exception, the applicant either must be a professional with an Advanced Degree (such as a graduate degree or the equivalent which may include a Bachelor=s degree & at least five years progressively responsible experience) or an "Alien of Exceptional Ability who "will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States." The applicant's services in the sciences, arts, professions, or business must be sought by an employer in the United States.

An applicant who is able to show that his or her work will benefit the "national interest," the requirement of a job offer from an employer may be waived.

To qualify for the Exceptional Ability category (EB2), the applicant must demonstrate"exceptional ability" with evidence from three of the following six categories:

• a degree or diploma in the field
• letters from present or former employers showing 10 years full time experience
• professional or occupational license or certificate
• high salary or other remuneration commensurate with exceptional ability
• membership in professional associations
• recognition for achievements or significant contributions by peers, government entities or professional or organizations in the Arts.

In addition, the regulations defining EB-1 criteria contain a "catch all" clause allowing applicants who believe that these categories of evidence do not "readily apply to his or her occupation" to submit additional relevant documentation.

Once it is established that the applicant can qualify under one of these two definitions (as an Advanced Degree Professional or as an Alien of Exceptional Ability), then it must be shown that the applicant "will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States" and either that an employer requires the services of such an individual or that applicant's continuing work in his or her field would be "in the "national interest." Neither the law nor the immigration regulations provide a definition of the term "national interest," nor do they give any guidance relating to the term. Rather, the Immigration & Naturalization Service looks at the "national interest" on a case-by-case basis.

Recent decisions have curtailed the use of this exception by adding additional requirements, such as establishing why the labor certification mechanism is not appropriate. The key appears to be 1) identifying a problem, issue or need; 2) showing how the work being done by the applicant (or an organization or group with which the applicant is associated) addresses the problem, issue or need; 3) showing how the work has a national scope or national impact and 4) showing why the applicant=s contribution is essential and/or unique in relation to the work.

The kind of documentation which is generally submitted includes published material about the applicant (or an organization or group with which the applicant works), letters of support and recommendation from recognized experts, government officials, etc. and published material illuminating the problem, issue or need.

"SCHEDULE A": EMPLOYMENT DETERMINED BY DEPARTMENT OF LABOR TO IN PERMANENT SHORTAGE
 

Here, an employer sponsors the applicant in the EB-2 category or the EB-3 category (professional or skilled worker), but instead of filing a labor certification application, the employer requests an exemption from the labor certification requirement on the basis that the alien applicant has exceptional ability in the sciences or arts. The evidence which must be submitted includes:

• documentary evidence attesting to widespread acclaim and international recognition by recognized experts
  
• documentation showing that applicant's last year of work and proposed work requires exceptional ability;
  AND
  
• evidence from two of the following seven groups:
  
  
  • receipt of internationally recognized prizes or awards
  • membership in international organizations requiring outstanding achievement for membership
  • published material about applicant's work
  • participation as a judge of others' work
  • original scientific or scholarly research
  • authorship of published scientific or scholarly articles
  • display of work at artistic exhibitions

The requirements for this category are similar to those for Aliens of Extraordinary Ability in the EB-1 category discussed above.

NURSES AND PHYSICAL THERAPISTS
 

Employers can also file visa petitions for registered nurses and physical therapists without first having obtained a labor certification.