(ii) Extraordinary Ability Alien Petition (EAA) (EB-1);
(iii) National Interest Waiver Petition (NIW) (EB-2); and
(iv) Alien Labor Certification (ALC) via (a) Regular processing; (b) Limited Review or Fast Track processing (LR); or (c) Reduction in Recruitment (RIR) processing (all are eventually classifiable as either EB-2 or EB-3 upon the filing of an immigrant petition, depending upon the qualifications of the alien professional).
This section only discussed the first three options.
EB-1, EB-2 and EB-3 stand for Employment Based First, Second and Third Preference petitions.These preferences are very important if you were born in either India or China, the two countries that have the most severe backlog for the availability of a permanent resident visa.(See the latest Visa Bulletin for availability of EB visa numbersÖ.these priority dates change, and could also be current from time to time for India and China born)
Based on the classification as either EB-1, EB-2 or EB-3 in the I-140 Petition filed with the INS, and based on your Priority Date (established by the filing of either EB-1 petition or an EB-2 NIW petition, or the filing date of the labor certification), the date when a visa number is available to you will be determined by your EB category and your country of birth, which will in turn trigger the date you can file for Adjustment of Status as a permanent resident and obtain permanent work authorization.The availability of visa numbers is published in the Visa Bulletin published by the Department of State every month.My law firm also publishes a monthly immigration newsletter which will be sent to you and it will also provide you this information as well as keep you updated on other immigration issues.
This section briefly explains the rudiments of each process, without any specific application to the facts pertaining to your individual situation, at the moment.
This first preference employment based immigrant petition requires that the candidate be:
i. recognized internationally in a specific academic area, and
ii. possess at least three years of teaching or research experience in the academic area; and
iii. seek to enter the United States for :
a. tenure or tenure-track position within a university or other institution of higher education to teach in the academic area; or
b. comparable position with a university or other institution of higher education to conduct research in the area; or
c. comparable position to conduct research in an area with a department, division, or institute or a private employer, if the department, division, or institute employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field.
This petition is filed by the alienís employer and it does require a job offer in a research position in the industry or an offer of a tenure-track position in a university.
This first preference employment based immigrant petition requires:
a. Clear and convincing evidence that the alien is going to continue to work in the field in which he/she has the extraordinary ability;
b. Clear and convincing evidence that the alienís entry into the United States will ďsubstantially benefit prospectively the United StatesĒ;
c. Clear and convincing evidence that the alien has attained national acclaim within his/her field of endeavor, in the form of various letters of recommendation from pre-eminent professors, critics, and a list of national and international publications;
d. Clear and convincing evidence of alienís recognition internationally as an extraordinary researcher in the specific academic field;
e. Evidence of Extraordinary Ability: (three out of ten rule) The usual evidence is:
(e.1)Evidence of alienís receipt of major awards for excellence in an academic field of endeavor;
(e.2)Evidence of alienís memberships in associations in the academic field which require outstanding achievement of their members;
(e.3)Evidence of alienís authorship of original scientific or scholarly articles in the field of endeavor, in professional journals of national and international circulation;
(e.4)Evidence of alienís original scientific or scholarly contributions of major significance within the field of endeavor;
(e.5)Evidence of published material in a professional or major trade publication about the alien and relating to the alienís work in the field of endeavor;
(e.6)Evidence of alienís participation as an invited speaker in various eminent conferences within the academic field of endeavor;
(e.7)Evidence that the alien has performed a leading or critical role within organizations that have a proven reputation of accomplishments with the scientific field of endeavor in which the alien possesses the extraordinary ability.
This petition is a self-petition filed by the alien, and does not necessarily require an offer of employment, although from an advocacy standpoint, it is always much better, if there is a job offer and the employer is willing to write a strong letter of recommendation.
The EB-2 category (employment based 2nd preference) involves members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences or business. Although this category requires an employer and labor certification, the Attorney General may waive this requirement if the work by the alien is in the "national interest".
To qualify for a national interest waiver the individualís work must prospectively benefit the U.S.ís national interest, enough to warrant the waiver of a labor certification. Since the term national interest has not been defined in the statute, certain factors are taken into account in determining national interest. These factors include improvement of: the U.S. economy; wages and working conditions for U.S. workers; education, health care, the environment and housing. An interested government agency request is an added factor which is given considerable weight by the INS.
In addition, the INS generally requires that the individual have at least two years experience in the area which benefits the U.S., that the work not ameliorate a local labor shortage, and that the individual play a significant role in the activity that will prospectively benefit the U.S.
Thus, in a nutshell, if you can answer YES to any one of these questions, you may be eligible for a National Interest Waiver.
Questions:Would your jobÖ
improve the U.S. economy?,
improve the wages and working conditions of U.S. workers?,
improve the education and training programs for U.S. children and under- qualified workers?,
improve health care?,
provide more affordable housing for young and/or older poorer U.S. residents?,
improve the environment and make more productive use of natural resources?, or
did you come to the U.S. at the request of a U.S. Government agency?
In addition, the INS has recently published additional guidelines regarding National Interest Waiver in the wake of a recent landmark case law.The specific evidence you must provide to establish the alienís eligibility for a national interest waiver is as detailed below, pursuant to Matter of New York State Dept of Transportation, Interim Decision 3363, (Acting Assoc. Commír, Programs, Aug. 7, 1998).
You must provide evidence which addresses the alienís eligibility for a national interest waiver under each of the following:
1. Provide evidence the benefits of the alienís proposed employment will be national in scope. His/her employment may be limited to a particular geographic area. However, you must establish benefit to more than a particular region of the country. Moreover, there should be little or no adverse impact on the interests of other regions of the country.
2. Submit evidence the alien seeks employment in an area of substantial intrinsic merit. His/her employment must be important to the national interests of the United States. Additionally, the benefits of his/her employment should be immediately apparent to the national interests of the United States.
3. Submit evidence related to the alienís ability to perform the duties of the proposed employment position. To be considered in the national interest the alien must make a showing significantly above that necessary to prove the ďprospective national benefitĒ required of all aliens seeking to qualify asĒexceptionalĒ. Exceptional is defined under service regulation as---- ďa degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.Ē
4. You must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required. You must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of his/her services by making available to U.S. workers the position you seek.
5. You must establish you are not seeking a national interest waiver based on a shortage of qualified workers in a given field, regardless of the nature of the occupation. The national interest waiver is not warranted solely for the purpose of ameliorating a local labor shortage.
6. If you demonstrate that the alien hold a patent or is responsible for an innovation, then you must demonstrate that the specific innovation serves the national interest.
7. You must establish the alien has a past record of specific prior achievement which justifies projections of future benefit to the national interest. You must establish, in some capacity, his/her ability to serve the national interest to a substantially greater extent than the majority of his/her colleagues. You must demonstrate to some degree his/her influence in the particular field of employment as a whole.
Needless to say, any further discussion of the EB1 and the NIW options will require a careful analysis of your job, your qualifications, availability of references such as professors etc., who can sign letters recommending you for an EB1/NIW.In a nutshell, if you think you qualify for an EB1 or an NIW, discuss this option with your lawyer.
Preparation of the I-140 petition package for extraordinary ability, outstanding professors and researchers, and NIW cases, outlined above, is a methodical process that takes more time than preparation of the typical nonimmigrant application. Once finalized, the petition is filed with the appropriate INSServiceCenter. Upon receipt, the INS assigns a date to the petition, which serves as the "priority date" for the entire case.
Two AAO decisions regarding EB-1 Extraordinary ability alien petitions, made available to us on Jan 7, 2007
1. An unpublished 2005 AAO decision rejects the service center's assertion that, even if an EB-1 extraordinary ability petition fulfills at least 3 of the 10 regulatory elements, achievement of the requisite recognition is not necessarily established. However, AAO finds that the petition did not satisfy at least 3 of the elements.
This decision is posted on this website to the left of this box.
2. An unpublished 2005 AAO decision finds flaws in the service center's analysis of the law and evidence relating to two categories of documentation, but nevertheless upholds the denial of an extraordinary ability immigrant petition for an art director in the field of entertainment advertising. This decision is posted on this website to the left of this box.