Alternatives to the Labor Certification Process: There are several different categories for seeking immigration to the United States. Most of them require showing that there is a shortage of U.S. workers and the employer has to go through a process, called the Application for Alien Labor Certification, or Labor Certification (also called PERM). There are, however, five categories that do not require the Labor Certificationprocess. These are:
Under the Outstanding Researcher category, the foreign national has the responsibility of convincing the government that s/he has an outstanding international reputation as a researcher or professor and that s/he has at least three years' research experience. In addition, the employer must be either a university or a private organization that has at least three full-time research positions. The employer must be willing to file an immigrant visa petition on behalf of the foreign national. USCIS provides a list of suggested documents to prove that the foreign national has an outstanding reputation (the foreign national is required to submit at least two of the following items):
Please note that this is not an exclusive list. The foreign national can submit other documentation as additional proof of their qualifications. Please also note that the following list is not a list of required documents—if something does not apply, the petition can still go forward.
The foreign national also needs to establish that s/he has at least three years of research experience. Time in private industry counts, as does research in pursuit of foreign national's Master's or Ph.D. studies (can use reference letters to also establish this element.
The National Interest and Exceptional Ability categories are more difficult to establish, although the documentation presented to government is usually the same type as for the Outstanding Researcher. The foreign national must understand, however, that the evidence receives higher scrutiny from the government. One reason for the heightened review is that both the National Interest and Exceptional Ability categories allow the foreign national to 'self-petition'. In other words, the foreign national does not need an employer to "sponsor" foreign national immigration. Nonetheless, the foreign national must convince the government that the s/he is likely to continue to work in foreign national field. Because of recent agency interpretations, the two categories are very similar.
The National Interest and Exceptional Ability categories are not limited to scientists. Artists, athletes, and others can use these categories, although the government guidelines were clearly written with scientists in mind. Attorneys have used these categories successfully with ballroom dancers, comic book artists, body boarding judges, specialty bicycle manufacturers, and highway safety engineers, to name just a few of the more unusual cases.
To be successful with a National Interest case, the foreign national must establish that the s/he is an individual of extraordinary ability (higher than outstanding) and that there is something about the foreign national and his/her abilities that will benefit the United States as a whole. In other words, there is something unique about theforeign national's abilities that will make life better in this country. Although not contained in the statute, agency interpretations say that the foreign national must show that his/her U.S. peers could not perform the same duties and explain why the foreign national should be exempted from the Labor Cert process.
The foreign nationalmust submit the following to prove his/her National Interest qualifications:
USCIS requires the foreign national to submit at least three of the above items. However, just three of the foregoing may not be sufficient for the case to be approved.
For the Extraordinary Ability category, the government will accept a one-time receipt of a major international award (such as a Nobel Prize) or evidence to show that the foreign nationalis one of the few to have risen to the top of foreign national field. Ifthe foreign national has not received such a prize or a major international award, s/he may submit at least of the following as evidence of their Extraordinary Ability: