Extraordinary Ability, Outstanding Researchers and Professors, and National Interest Waivers

The attorneys at Landau, Hess, Simon, Choi & Doebley have successfully represented many foreign nationals seeking to “self sponsor” their permanent residence applications as persons of extraordinary ability or if their admission to the U.S. would be in the national interest. In addition, employers may sponsor foreign national employees as outstanding researchers or professors. With each consultation, we carefully review the foreign national’s credentials to determine whether the individual has a likely chance of su under the ever changing standards for these categories, whether the individual has a likely chance of success.

The employment-based first preference (EB-1) classification of Extraordinary Ability is akin to the O-1 temporary non-immigrant visa petition. The applicant is required to demonstrate sustained national or international acclaim, as well as recognition in the field of expertise, by meeting at least 3 out of the 10 listed criteria below or, alternatively, providing evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal):

• Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
• Membership in associations in the field which demand outstanding achievement of their members;
• Published material about the foreign national in professional or major trade publications or other major media;
• Invitations to judge the work of others, either individually or on a panel;
• Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
• Authorship of scholarly articles in professional or major trade publications or other major media;
• Performance of a leading or critical role in distinguished organizations;
• Commanding a high salary or other significantly high remuneration in relation to others in the field;
• Work displayed at artistic exhibitions or showcases (for extraordinary ability in the arts); and
• Commercial successes in the performing arts ((for extraordinary ability in the arts).

Unlike the first preference category of Extraordinary Ability, the other first preference classifications (Outstanding Researcher and Professor and Multinational Manager or Executive) require the sponsorship of an employer and an offer of permanent employment. The Outstanding Professor requirements are described in more detail in the above sub-category of “University and College Professors.” An employer may file an I-140 immigrant visa petition for a foreign national researcher who is recognized internationally as outstanding in a specific academic area. The sponsored foreign national must have at least three years of research expertise in his or her area of expertise and be offered a research position considered to be ‘permanent’ in the United States. If the employer is private, and not a university or non-profit research institute, the employer must employer at least three persons full-time in research positions and have achieved documented accomplishments in an academic field. In addition to an offer of employment, the sponsored foreign national is required to provide documentation of at least two, (but preferably more) of the following areas:

• original scientific or scholarly contributions to the field;
• authorship of scholarly books or articles;
• participation, individually or on a panel, judging the work of others;
• published material about one’s work;
• membership in an organization that requires outstanding achievement;
• receipt of major prizes or awards for outstanding achievement; and/or
• other comparable evidence.

The second preference employment-based preference classification of National Interest Waiver petitions also presents an opportunity for a foreign national to self-sponsor for permanent residence. In seeking this waiver, the foreign national is requesting to the USCIS that the normal requirement of labor certification be waived in the national interest. To qualify for this national interest exemption, the threshold criteria include the following:

• the foreign national’s proposed endeavor has both substantial merit and national importance;
• the foreign national is well positioned to advance the proposed endeavor; and,
• on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.