Business Immigration

The Alien of Extraordinary ability category is, in effect, reserved for that small percentage who has risen to the very top of their field of endeavor. This subcategory covers aliens possessing extraordinary ability in the sciences, arts, education, business or athletics. The extraordinary ability subcategory does not require a specific job offer, so long as the alien states that he/she will continue to work in the field of their extraordinary ability in the US. This means that the alien may file a petition on his/her own behalf, rather than having an employer file for them.

United States Citizenship and Immigration Services (USCIS) regulations define extraordinary ability as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.” In order to show that an alien has “extraordinary ability”, the alien must show three of the following ten types of evidence:

  • Receipt of lesser national or international prizes or awards for excellence in their field of endeavor
  • Membership in associations in the field of endeavor that require outstanding achievements of their members
  • Published material about the alien and his work in professional journals, trade publications, or the major media
  • Participation, either in a group or alone, as a judge of others in the same or a similar field
  • Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor
  • Authorship of scholarly articles in the field, published in professional journals or the major media
  • Display of the alien’s work at artistic exhibitions or showcases in more than one country
  • Performance in a lead, starring, or critical role for organizations with a distinguished reputation
  • Commanding a high salary compared to others in the field
  • Commercial success in the performing arts, as shown by box office receipts and sales

The EB-1 is a good option for those applicants who do not wish to file for labor certification (PERM). Only the “alien of extraordinary ability may sponsor his or herself.

The EB-1 alien of extraordinary ability or outstanding researcher is a great way to avoid the arduous PERM process; however, it must be done correctly to prevent a dreaded “request for evidence” issued by USCIS. The Fleischer Law Firm LLC has developed a strong strategy for obtaining a successful alien of extraordinary or outstanding researcher petition.

When a researcher, physician, scientist or other qualifying professional files an EB-1 petition, there is rarely, if ever an “interview” with an USCIS adjudicator. Therefore, the Fleischer Law Firm requires all of their clients to write a “personal statement” in support of their petition. This person statement is a chance for an applicant to “speak” to the adjudicating officer; it is not a time to be shy or modest, but to fully demonstrate your qualifications and achievements as one of the top professionals in your field. While using language a lay person could understand (i.e. minimal scientific or field-specific jargon), a successful applicant should clearly elucidate the applicants IMPACT on his or her field, and how the applicant’s work relates to the criteria listed above.

The Fleischer Law Firm LLC has been success in obtaining Alien of Extraordinary Ability petitions for dancers, doctors, businessmen, scientists, researchers, athletes, artists and other occupations.

DISCUSS YOUR CASE

‘Advanced degree’ means a US degree or a foreign degree equivalent to a US degree above that of a baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in this specialty shall be considered the equivalent to a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate degree or a foreign equivalent degree.

‘Exceptional ability in the sciences, arts or business’ means a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business. Exceptional ability is a very high standard, but is less than that of ‘extraordinary ability’ found in the ‘priority worker’ category, thus a degree by itself is not enough.

Unlike the EB-1 category, the EB-2 category requires an employer and a labor certification. There is however an exception to this rule. If the alien’s job is deemed to be “in the national interest” of the United States there is a “waiver” of the labor certification requirement. Obtaining this waiver is beneficial because the processing times will be greatly reduced.

For more information, please read about National Interest Waivers.

DISCUSS YOUR CASE

‘Skilled’ worker means an applicant who is capable, at the time of petitioning for this classification, of performing skilled labor (requiring at least two years training or experience) not of a temporary or seasonal nature for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision.

‘Professional’ means a qualified alien who holds at least a United States baccalaureate degree or an equivalent degree and who is a member of the professions.

‘Other worker’ means a qualified alien who is capable, at the time of petitioning for this classification, of performing unskilled labor (requiring less than two years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

All petitions filed in the EB-3 category require a job offer and a labor certification, now called PERM. The requirement of a labor certification is essentially a statement from the Department of Labor that there are no qualified available US workers willing to fill the position offered and has been part of US immigration law since 1965. Before then an immigrant worker could not be excluded unless the Attorney General issued a statement saying that there was no shortage of US workers and that admission of the alien workers would harm the position of US workers. The labor certification applies to all workers in the EB-3 preference category and most workers in the EB-2 category. Aliens in the EB-1 preference are exempt from the requirement.

The question answered by the labor certification is whether there are any “able, willing, qualified, and available” US workers. US workers include citizens, permanent residents, and anyone authorized to work in the US whose work authorization is not tied to a specific employer. In most labor certifications, the qualified US worker need only meet the minimum qualifications for the position. The exceptions are for teachers at colleges and universities and aliens of exceptional ability in the performing arts, in which the US worker must be as qualified as the alien worker.

Learn more about the Permanent Labor Certification or contact us with any questions.

DISCUSS YOUR CASE

A religious worker is a person who for at least two years immediately preceding the filing of a petition, has been a member of a religious denomination which has a bona fide nonprofit religious organization in the United States. The applicant must also be coming to the United States solely for the purpose of carrying on the duties of (1) a minister of that religious denomination or (2) working for the organization in a professional capacity in a religious vocation or occupation for the organization or (3) in a religious vocation or occupation for the organization or its non-profit affiliate.

Further, religious workers must have been performing the vocation, professional work or other work continuously (either abroad or in the United States) for at least the two year period immediately preceding the filing of the petition.

Such a person may come as a minister, work in a professional capacity or other work.

‘Minister’ means an individual duly authorized by a recognized religious denomination to conduct religious worship and to perform other duties usually performed by an authorized member of the clergy of that religion. There must be a reasonable connection between the activities performed and the religious calling of the minister. This term does not include a lay preacher, not authorized to perform such duties.

‘Professional capacity’ means an activity in a religious vocation or occupation for which the minimum of a United States baccalaureate degree or a foreign equivalent degree is required.

‘Religious occupation’ means an activity, which relates to a traditional religious function, such as by way of example liturgical workers, religious instructors, religious counselors, canters, catechists workers in religious hospitals or religious health care facilities, missionaries, religious translators or religious broadcasters. This does not include janitors, maintenance workers, clerks, fundraisers or a person solely involved in solicitation of donations.

DISCUSS YOUR CASE

The minimum amount of investment is either $500,000.00 or $1,000,000.00. Threshold investment amounts to $500,000.00 in areas of high unemployment or in a rural setting and reserves 3,000 visas of the 10,000 for this ‘targeted employment area’. The $1,000,000.00 minimum is for areas other than a targeted employment area, but may also be in a targeted employment area. The Act further says that such an investor must provide at least ten full-time jobs for US citizens, residents or ‘other immigrants lawfully authorized to be employed’ in the US. It is this employment provision which made this section politically acceptable to the Congress so that receiving residence through investment could be passed.

The regulations also say that there may be no passive investment. However, the investor only has to have a place on the board of directors and does not have to take a more active role if that is not wanted.

There is a major difference between obtaining permanent residence through this category and the other employment categories. The initial grant of residence through the ‘investor’ category is called ‘conditional’ permanent residence. What this means is that residence is granted conditionally for two years. At the end of this time a second form is filed with the USCIS showing that the required amount of investment is there, as is at least ten full-time employees that were hired because of the investment. Of course, they don’t have to be the same employees. When these conditions are met, the ‘conditional’ part of the conditional permanent residence is dropped. The only equivalency for this kind of provision is in the marriage category where conditional permanent residence is given to a spouse of a US citizen or legal permanent resident who hasn’t been married for two years before residence is given.

DISCUSS YOUR CASE

What is PERM?

Affective March 28, 2005, the Department of Labor’s Employment and Training Administration (ETA) published new regulations guiding the requirements and processes for an employer to obtain a permanent labor certification for a foreign worker.

A permanent labor certification allows an employer to hire a foreign worker to work permanently in the United States. In order for a permanent labor certification to be approved, the Department of Labor (DOL) must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

How do I Apply for PERM?

In order for a United States employer to hire a foreign worker permanently, the employer first files an Alien Employment Certification, ETA Form 9089. The date the labor certification application is filed is known as the filing date and is used by USCIS and the Department of State as the priority date. Once the application for Alien Employment Certification is approved by the DOL, the approval should then be filed with the USCIS service center with form I-140, Immigrant Petition for Alien Worker.

An application for Permanent Employment Certification can be filed either electronically or by mail. However, the Department of Labor recommends that the employer files electronically. Electronic filing is faster and will ensure that the employer has provided all required information as an electronic application cannot be submitted if the required fields are not completed.

In order to file electronically, the Online Permanent System requires an employer to set up an individual account. The employer must go to www.doleta.gov and set up a profile by selecting the appropriate profile option in the Online System. After registering and establishing an account, the employer can fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.

DISCUSS YOUR CASE