Immigrant Visas

Persons Of Extraordinary Ability

A Person of Extraordinary Ability or EB-1(a) classification applies to aliens who can demonstrate that they “have risen to the very top of their field of endeavor.” To establish that he/she is a top member within his/her respective field, evidence of receipt of an internationally recognized award such as the Nobel Prize or Academy Award is accepted. In the absence of an internationally recognized award, one can establish him/herself as a Person of Extraordinary Ability by providing alternative evidence, including significant publications and peer recognition.

Like all EB-1 cases, no Labor Certification is required. Also, an alien that qualifies as a Person of Extraordinary Ability need not seek employment or have a job offer. An EB-1(a) candidate may petition for his/her own permanent residency without the need for an employer sponsor, as is generally required in employment-based petitions.

Persons with Advanced Degrees or Exceptional Ability

This category includes two subcategories of persons: (a) advanced degree professionals and (b) persons of “exceptional ability” (not to be confused with persons of “extraordinary” ability, discussed above). Labor certification is required.

An advanced degree professional must have the equivalent of a graduate level degree or any other degree which requires post-graduate education beyond the baccalaureate degree. Further, you must be internationally recognized or outstanding in your field.

A person must demonstrate “exceptional ability” in the arts, sciences, and business. You must be significantly more accomplished than the average person in your profession and have a degree of national acclaim. An exception to the labor certification requirement exists for a person of exceptional ability where the person can demonstrate that his or her presence will “benefit” the U.S.

Outstanding Researchers

An “Outstanding Researcher or Professor” EB-1(b) petition is for those who are internationally recognized as outstanding in a particular scientific or scholarly field. A job offer for a permanent research position or a tenured or tenure-track teaching position is required. Other requirements include: international recognition as being outstanding in a specific academic field; and at least three years of relevant research or teaching experience.

National Interest Waivers (‘NIW’)

Normally, if an applicant qualifies for the second employment-based category (holding an Advanced Degree and Persons with Exceptional Ability in the Arts, Sciences and Business), the labor certification is required. However, a limited exception exists if the employment is in the “national interest” of the United States.

In order to file an NIW petition, the candidate must be able to demonstrate that he is seeking work in an area of substantial intrinsic merit to the US, that the benefit from the candidate’s proposed activity will be national in scope, and that such national interest would be adversely affected if a Labor Certification were required for the alien applicant.

Since the requirement of a job offer is waived, an individual, even if he/she has no employer, may file an NIW petition on behalf of himself/herself, while a U.S. employer may file an NIW on behalf of the alien as well.

Various factors are considered, including improving the United States economy; the wages and working conditions of U.S. workers; the education and training programs for U.S. children and other qualified workers; and improving health care, are just a few.

Please contact us for a detailed review of your case.

Investment-Based Green Cards

Permanent residency or ‘green card’ status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible individuals are those who have invested who either establish an original business or purchase an existing business — or are actively in the process of investing — the required amount of capital which is $1,000,000, or at least $500,000 where the investment is being made in a “targeted employment area,” into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create full-time employment for not fewer than 10 qualified individuals for qualified persons within the United States.

Labor Certification

An employer must file a labor certification as a prerequisite for obtaining a green card for an employee whose eligibility is based on a job offer. Labor Certifications are specific to the employer, job opportunity, and geographic location stated on the original application.

The traditional Labor Certification process has been replaced with the “Program Electronic Review Management process” (PERM), and it is an entirely new procedure for Labor Certification Application. In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test job market before filing the application. If no qualified and willing applicant (US citizen or Permanent Resident) is found through the recruitment process, the employer can submit the PERM Labor Certification.

The main distinction between PERM and the previous Labor Certification process is that under PERM no supporting documents are submitted at the time of filing. However, the petitioning employer is required to have all supporting documents ready prior filing and should submit to DOL within 30 days if the case is chosen by DOL for auditing. It is filed with the U.S. Department of Labor, which certifies that there are no U.S. citizens or permanent residents who are willing or able to do the job.

Family-based Green Cards

Another major avenue by which individuals can obtain a green card is through a family member. Certain family member relationships are more advantageous than others in obtaining a green card. An applicant may have more than one green card option available due to multiple familial relationships. Thus, it is important to evaluate all the possible routes to determine the most time-efficient one.

Spouses

A person who marries a U.S. citizen can obtain a green card. If the marriage was entered into within 2 years, the person will receive “conditional permanent residence”. This means that the permanent resident status can be terminated if, within two years after the permanent resident status is granted, the marriage is annulled, ends in divorce, or was completely fraudulent. On the other hand, if the marriage is not doing well so that the couple is not together, so long as they are not legally separated, the marriage is still considered “valid” for green card purposes.

Parents

Permanent residency can also be obtained for parents of U.S. citizens. There is a two-step process for a parent to become a legal immigrant. First, the USCIS must approve an immigrant visa petition. Second, if the parent is outside the United States, he/she will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. If inside the U.S., he or she may apply to adjust his or her status to that of a lawful permanent resident.

Siblings

Permanent residency can also be obtained for siblings of U.S. citizens. There is a three-step process for a brother or sister to become a legal immigrant. First, the USCIS must approve an immigrant visa petition. Second, the State Department visa bulletin must show that a sibling immigrant visa is available to your sibling, based on the date that you filed with the immigrant visa application. Third, if the brother or sister is outside the United States when an immigrant visa number becomes available, he/she will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa.