Seguritan US Immigration Articles

Green Card for Aliens of Extraordinary Ability

Foreign nationals of extraordinary ability are eligible to become lawful permanent residents under the employment-based first preference category (EB-1). They do not need a job offer from a U.S. employer, which means that they can self-petition or file the immigrant petition themselves.

Under the EB-1 category there is also no labor certification requirement. Since there is currently no visa backlog, the foreign national as well as his spouse and children do not have to wait long after the approval of the petition before being able to immigrate or receive their green cards. If they are in the U.S., the I-140 petition and I-485 adjustment application may be concurrently filed.

The demand for a EB-1 visa is comparatively low because of the high standard under this category. This is especially true of individuals who want to qualify as aliens of extraordinary ability. Outstanding professors or researchers and certain multinational executives and managers are also eligible for EB-1 classification.

To be an alien of extraordinary ability, one must demonstrate sustained national or international acclaim and give extensive documentation of his achievements.

Sustained national or international acclaim is best evidenced through a one-time achievement of a major, internationally recognized award, such as the Nobel Prize, an Oscar Award or an Olympic medal. However, it can also be proven by submitting evidence falling under at least three out of the ten regulatory criteria.

These ten criteria are the following: (1) receipt of lesser nationally or internationally recognized prizes or awards for excellence; (2) membership in associations in the field that demand outstanding achievement of their members; (3) published material about the alien in profession or major trade publications or other media; (4) evidence that the alien has been asked to judge the work of others, either individually or in a panel; (5) evidence of original contributions of major significance to the field; (6) authorship of scholarly articles; (7) display of the alien’s work at artistic exhibitions or showcases; (8) evidence of performance in a leading or critical role for organizations that have a distinguished reputation; (9) evidence of high remuneration in relation to others in the field; and (10) evidence of commercial success in the performing arts.

The foreign national may submit other comparable evidence if these criteria do not readily apply to his field of expertise.

In adjudicating EB-1 petitions, USCIS officers will take a two-part approach. The adjudicator will first look at the evidence to count how many evidentiary prongs were met. If at least three of the criteria were met, the adjudicator will find that the self-petitioner or the beneficiary has established the minimum eligibility requirement to qualify as an alien of extraordinary ability and proceed to the next step.

The adjudicator will look at the evidence in totality and find out whether the foreign national meets the required level of expertise for the category. The evidence must show that he has the level of expertise of that small percentage of individuals who have risen to the very top of their field of endeavor, and that he has sustained national or international acclaim and his achievements have been recognized in his field of expertise.

Additionally, the foreign national must seek to continue working in the same field of endeavor and that his entry will substantially benefit prospectively the U.S.

Because of its very strict requirements, the EB-1category is certainly not for everyone. But for those who can meet demonstrate eligibility as aliens of extraordinary ability, it offers the one of the fastest routes to permanent residence.

Aliens of Extraordinary Ability May Self-Petition for a Green Card

Every year, more than 40,000 immigrant visa numbers are available for the first employment-based preference (EB-1). This category is open to aliens of extraordinary ability, outstanding professors or researchers, and certain multinational executives and managers.

Unlike the last two classes of workers, the extraordinary ability alien does not need a job offer from a U.S. employer. The extraordinary ability alien may “self-petition” or file an I-140 him/herself. There is also no labor certification requirement for workers in the EB-1 category.

The demand for this category is low. In 2010 for instance, only 5,198 applications were filed. At the same time, however, approval can be difficult to obtain. Of those 5,198 applications, only 62% were approved and this is already the highest approval rate since 2005.

Nonetheless, for those who can meet its high requirements, the EB-1 is a good option not only because of the exemption from the job offer and labor certification requirements but also because there is currently no visa backlog under this category.

In order to qualify, the foreign national must show that he has extraordinary ability in the sciences, arts, education, business or athletics. He must be able to demonstrate that his level of expertise indicates that he is one of a small percentage of those who have risen to the very top of the field of endeavor.

The foreign national must have been recognized in his field and received acclaim for those accomplishments. This can be done in either of two ways. First, it can be through a one-time achievement in the form of an internationally recognized award. In reality, however, very few people receive this type of international acclaim.

More frequently, applicants use the second way of demonstrating extraordinary ability status which is by submitting evidence of at least three of ten criteria, or the so-called “three-out-of-ten” rule.

These criteria are: receipt of lesser nationally or internationally recognized prizes or awards for excellence; membership in associations in the field that demand outstanding achievement of their members; published material about the alien in profession or major trade publications or other media; evidence of original contributions of major significance to the field; authorship of scholarly articles; display of the alien’s work at artistic exhibitions or showcases; evidence of performance in a leading or critical role for organizations that have a distinguished reputation; evidence of high remuneration in relation to others in the field; and evidence of commercial success in the performing arts.

Published material about the foreign national must relate to his work in the field for which the classification is sought and must contain the title, date and author of the material and a translation if necessary. As for the criterion of proof of membership in an association, the focus of the USCIS’s inquiry is the requirements for membership and not the association’s overall reputation.

When it comes to evidence of contributions of major significance to the field, the foreign national must show that his contributions significantly influenced the field and place him significantly above his peers.

Evidence of high remuneration as compared to others in the field is also helpful but less so for individuals in science or education where salary levels are not good indicators of the worker’s ability, unlike in athletics or the performing arts.

In order for the extraordinary ability alien to be eligible for a visa under EB-1, his entry must “substantially benefit prospectively the United States”. This means that he must continue to work in his field upon admission to permanent residence.

Immigration Bill to Alleviate Doctor Shortage

Reports show that there is a serious shortage of doctors in America today. While it may not be obvious in big cities, the lack of physicians has become strongly felt in poor and rural areas. By year 2020, the doctor shortage is expected to reach 200,000 because of the aging baby boom generation.

A bipartisan bill was recently introduced in the Senate to make it easier for foreign doctors to obtain temporary visas and permanent residence in the U.S. and thereby address the shortage.

The bill, also known as the “Conrad State 30 Improvement Act” (S.1979), seeks to make permanent a program allowing states to recommend J-1 waivers for physicians who work in medically underserved communities. Currently, the program needs to be renewed every 2 or 3 years. The number of doctors that can be sponsored by each state annually would also be increased from the current 30.

It would also allow doctors on H-1B status to restart the 6-year maximum period if they agree to work in underserved areas. The doctors would also find it easier to change employers.

Additionally, doctors who work in underserved areas would be able to immigrate under the EB-1 category, instead of the EB-2 category. This would greatly benefit physicians from China and India who would otherwise face lengthy visa backlogs under EB-2.

The doctor deficit is in part due to the economic recession but also in some part a result of the immigration restrictions on foreign medical graduates.

The immigration of foreign doctors is a complex matter governed by different sets of rules. Foreign doctors usually come to the U.S. either on an H-1B visa, which allows temporary employment, or J-1 visa, which permits them to undergo graduate medical education or training.

Most of the time, hospitals and medical schools offer only the J-1 option because of the lower level of responsibility required of them. Because H-1B visas are subject to annual limits, when the cap is reached the J-1 is sometimes the only option.

Upon the expiration of their J-1 visa, doctors must return to their home country for two years before they can apply for permanent residence. They may apply for a J-1 visa waiver to be exempt from this home residence requirement. One of the ways to get a waiver is through the state or the Conrad State 30 program, which is named after Sen. Kent Conrad (D-North Dakota) who sponsored the bill back in 1994 and which is the subject of the S.1979.

Many doctors, however, are unwilling to go through the waiver process and instead choose to go back to their home countries or elsewhere to work. Even doctors on H-1B status who lack options for permanent residence sometimes just give up upon reaching the 6-year maximum H-1B period.

Although the specific requirements vary by state, the Conrad State 30 program allowed states to sponsor a certain number of foreign-born, U.S.-trained physicians per year for the J waiver, as long as they agreed to practice in underserved communities for at least 3 years. It was seen as a win-win situation: the doctor was able to remain in the U.S. and the community had a doctor.

The program has allowed 9,000 doctors to work in rural and underserved communities. However, the number of foreign doctors participating in the program has gone down over the years, further limiting the access to healthcare of the people who perhaps need it the most.

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