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OUTSTANDING RESEARCHER, NATIONAL INTEREST WAIVER AND EXTRA-ORDINARY ABILITY CASES

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:

  • EB-5 Investor Visa Program for those who invest between $500,000 and $1 million in a business;
  • EB-1 First Preference Category for Multinational managers or executives;
  • Outstanding professors and researchers;
  • National Interest Waivers for individuals of exceptional ability whose work is in the national interest; and
  • Extraordinary Ability for individuals of extraordinary ability.

Outstanding Researcher

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):

  • Receipt of major prizes or awards for outstanding achievement;
  • Membership in associations that require outstanding achievements of its members;
  • Published articles written by others about foreign national work;
  • Evidence that you have judged the work of others in foreign national field;
  • Evidence of foreign national original scientific research contribution to foreign national field; or
  • Articles written by you about foreign national research published in journals of international circulation.

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.

  • Résumé or curriculum vitae;
  • Copies of foreign national's degrees or transcripts;
  • Copies of published articles written by foreign national (the foreign national can be a co-author)
    • If the articles are lengthy, just the first page or abstract is sufficient;
    • Make sure the copied material shows the journal name, date, name of article, and authors of the article;
    • If an article has been recently accepted, a letter from the journal to that effect;
  • Copies of the Science Citation Index showing that the foreign natinal's articles have been cited by others in his/her field;
  • Copies of any letters from others requesting copies of foreign national's research. This tends to show both that the foreign national has contributed to their field and that the journals had international circulation;
  • Evidence that the foreign national has presented papers or research at international conferences
    • Copies of the program listing foreign national's name and topic;
    • Letters inviting him/her to speak;
    • List of participants, showing international character of the conference;
    • If the foreign national does not have any of these, but did present research, a letter from someone who can confirm this;
  • Any scholarships, fellowships, or awards the foreign national received as a student;
  • Any grants that the foreign national has received for foreign national research, especially if granted by the United States or a foreign government;
  • If the foreign national served on a master's or doctoral thesis review panel, a letter from someone who can confirm this;
  • If the foreign nationalhas reviewed articles for publication in a journal, provide evidence of this;
  • Any patent applications or awards based in whole or in part on foreign national's research;
  • Letters of reference from others in foreign national's field:
    • Obtain at least three;
    • At least one of these letters should be from an individual in a different country; and
  • Anything else that the foreign national can think of to show that the s/he is outstanding in foreign national field.

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.

National Interest and Exceptional Ability

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:

  • A degree or academic record showing an education related to the field of expertise;
  • Letters of reference, showing at least 10 years of experience in his/herfield;
  • License to practice in foreign national's field;
  • Evidence that the foreign national has commanded a high salary or other remuneration for services in foreign national field;
  • Membership in professional associations;
  • Recognition for achievements and significant contributions to the field; or
  • Anything else the foreign national can think of to show his/her abilities in the field.

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:

  • Receipt of lesser national or international awards;
  • Membership in associations that require outstanding achievements of their members as judged by national or international experts;
  • Published material about the foreign national in professional or trade publications or major media;
  • Evidence that the foreign nationalhas judged the work of others in their field;
  • Evidence of foreign national'soriginal scholarly contributions to their field;
  • Evidence of scholarly articles written by the foreign national about foreign national field and published in trade journals or other major publications;
  • Evidence that the foreign national has performed a lead or critical role for organizations of distinguished reputation;
  • Evidence that the foreign national has commanded a high salary or other remuneration for work in his/her field; and,
  • Anything else that the foreign national can think of to show the s/he is one of the few at the top of foreign national field.

For more information, please contact us at 215-368-8600 or ak@akaimmigration.com

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