Extraordinary Ability & National Interest Waiver

Employment Based First Preference

The employment based first preference, or “priority worker” category is authorized 40,040 immigrant visas per year. This category is divided into three sub-categories: EB1a “extraordinary ability aliens;” EB1b “outstanding professors and researchers;” and EB1c “multinational executives and managers.” Each sub-category has its own qualifying criteria and filing requirements. Common to all three is the exemption from the requirement that an approved foreign labor certification must be included in the filing package.

Immigration & Nationality Act, Section 203(b)(1) Priority workers

Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):

EB1 Petition

What we can do to assist you with your EB1 petition?
We will work with you to analyze your case and give you an honest assessment of your chances. If you decide to move forward, we will assist you in gathering all required evidence, including drafting proposed reference letters for outside experts. We will then assemble all of the evidence and prepare a detailed presentation for the USCIS. Upon your review and approval, we will then file it with the USCIS and follow through on all inquiries until a decision is reached.
(A) Aliens with Extraordinary Ability

(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and
(iii) the alien’s entry into the United States will substantially benefit prospectively the United States.
(B) Outstanding Professors & Researchers

(i) the alien is recognized internationally as outstanding in a specific academic area, 203(b)(1)(B)
(ii) the alien has at least 3 years of experience in teaching or research in the academic area, and
(iii) the alien seeks to enter the United States–
(I) for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
(II) for a comparable position with a university or institution of higher education to conduct research in the area, or
(III) for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.
(C) Certain Multinational Executives & Managers

An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

Employment Based Second Preference

The employment based second preference (EB2) category is guaranteed at least 40,000 visas per year, as well as all visas unused by the EB1 category. As a result, EB2 visas are always “current” for applicants born in every country in the world.

EB2 Classification

With more and more prospective immigrants considering upgrading from EB3 to EB2, it is worth taking a moment to review the legal requirements for EB2 classification. Initially, we must keep in mind that there are alternative qualifications. That is, a petition can qualify under the “advance degree” or “exceptional ability” standards. I mention this because there are a small number of people without advanced degrees who can, in fact, qualify under the exceptional ability standard. For anyone interested in finding more information, go to 8 CFR 204.5(k) for the specific criteria required.

With respect to the EB2 advance degree standard, the regulations of the USCIS require the following:

Advanced Degree

An official academic record showing that the alien has an United States advanced degree or a foreign equivalent degree.
Baccalaureate Degree

An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
Alternate Degree/Experience Qualification

The USCIS insists that for the alternate degree/experience qualification, the foreign degree must be a four year bachelor’s degree. They are unwilling to accept combinations of study programs that equal four years of study. Rather, they insist that the petitioner show that the beneficiary received a four year bachelor’s degree.
Adjudicator’s Field Manual
The USCIS, in its Adjudicator’s Field Manual, in Chapter 22.2, instructs adjudicator’s as follows with respect to the actual job offered in EB2 cases: The petitioner must demonstrate that the position, and the industry as a whole, normally requires that the position be filled by an individual holding an advanced degree. In this regard, the key factors are not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree, but rather that a combination of foreign degrees or credentials:
- Meets the minimum education requirements for the position
- Meet the definition of an advanced degree at 8 CFR 204.5(k)(2)
CIS Adjudicators

Most often, the CIS adjudicators will look to the job as it is described in the PERM application to determine whether it actually requires knowledge equal to that customarily gained through study leading to an advanced degree. Never assume that simply because the PERM application states that an advanced degree, or its equivalent, is the minimum requirement for the job that the CIS will accept this blindly. The Petitioner must establish affirmatively the requirement for the advanced degree.

Employment Based Third Preference

The Immigration and Nationality Act reserves slightly more than 40,000 visas annually for the employment based third preference classification. This preference category has three sub-groups: Professionals, skilled workers, and “other workers.” While there is a difference in the law between “professionals” on the one hand, and “skilled workers” on the other, there is no practical difference. That is, the law does not otherwise distinguish between the two and there is no benefit to being classified in one, rather than the other.

The “other worker” category is not at all desirable. To avoid being classified as an “other worker,” the beneficiary of the I-140 petition must have a labor certification for a job that requires at least two years of education, training, or experience as a minimum entry level. As long as this requirement is met, the beneficiary can qualify for “regular” EB3 classification and not have to suffer the consequences of “other worker” classification.

Skilled workers, professionals, and other workers.

General

Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2):
Skilled Workers

Qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
Professionals

Qualified immigrants who hold baccalaureate degrees and who are members of the professions.
Other Workers

Other qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. 203(b)(3)(B) Limitation on other workers.–Not more than 10,000 of the visas made available under this paragraph in any fiscal year may be available for qualified immigrants described in subparagraph (A)(iii).

Foreign Labor Certification (PERM)

The DOL processes applications for 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. After the labor certification application is approved by the DOL, it should be submitted to the USCIS service center with an I-140, Immigrant Petition for Alien Worker.

Qualifying Criteria:

Employment Based Green Cards

One of the methods by which many people become lawful permanent residents of the United States is what is known as “employment based immigration.” This involves demonstrating that the applicant has valuable work skills that will benefit the country. In most cases, the foreign national requires sponsorship by an employer. The only self-petition categories available are the employment based first (EB1) “extraordinary ability” and employment based second (EB2) “national interest waiver” petitions. All others require employer sponsorship.

I-140 Petition

Irrespective of whether a foreign labor certification is required, all employment based immigrants must file, or have filed on their behalf, an immigrant preference petition — form I-140. Approval of this petition is significant for several reasons: It perfects the applicant’s priority date; It confirms the applicant’s immigrant preference classification; and it makes the applicant eligible to apply for immigrant status as soon as his or her priority is “current.”
I-40 Petition Process

Unless and until an I-140 petition has been approved, the beneficiary of the petition only has an expectation of a specific priority date. After the I-140 petition has been approved, the priority date vests and the employee “owns” it forever, unless it is revoked by the USCIS for fraud or mistake. If an employer withdraws an approved I-140, the beneficiary remains entitled to that priority date for all subsequently filed I-140 petitions for any job, by any employer, and in any of the first three employment based preferences.
``Upgrade`` Preference Classification

In many cases, a person with an established employment based preference priority date (such as an EB3 beneficiary) will want to “upgrade” to a higher preference classification. This may be possible, depending upon the unique facts and circumstances presented.

Our attorneys & staff are always available for consultations.

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