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Three Immigrant Petitions under which Labor Certification Procedure Can Be Avoided

I. Extraordinary Ability Alien

The crucial aspect of an immigrant petition for an extraordinary ability alien is the documentation required to establish such ability. The INS rules permit the alien to establish extraordinary ability by evidence of receipt of a major, internationally recognized award, such as the Nobel Prize or an Academy Award.

Absent receipt of such an award, the alien must include at least three types of evidence from the following list:

  • Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts in their fields
  • Published material in professional or major trade publications or major media about the alien and relating to the alien's work in the field of endeavor (published material must include title, date, author, and be translated if necessary)
  • Evidence of participation, on a panel or individually, as a judge of the work of others in the same or an allied field of specialization
  • Evidence of original scientific, scholarly, or artistic contributions of major significance in the field of endeavor
  • Evidence of the authorship of scholarly articles in the field, in professional journals or other major media
  • Evidence of the display of his or her work in the field at artistic exhibitions or showcases in more than one country
  • Evidence of performance in a lead, starring, or critical role for organizations or establishments with distinguished reputations
  • Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others
  • Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales

The rules also provide that other comparable evidence may be submitted if the above types of evidence do not readily apply to alien's occupation.

The INS often requires additional evidence to document extraordinary ability even when the alien has provided three types of evidence from the INS list.

II. Outstanding professors and Researchers. Inclusion in this group requires:

  • recognition internationally as outstanding in a specific academic field,
  • at least three years of teaching or research in the field, and
  • the offer of a tenured or tenure-track teaching position or the offer a comparable research position or
  • the offer of a research position having no fixed term and in which the employee will ordinarily have an expectation of permanent employment or
  • the offer of a comparable research position with a private employer if the employer has at least three full-time researchers and documented accomplishments in the research field.

The employer offering the alien employment must file the petition. The key elements of this type of petition are:

  • proof that the employer is offering the alien employment of a qualifying nature,
  • proof that the alien has the requisite credentials, and
  • proof that the alien is outstanding in an academic field.

With regard to the issue of a qualifying offer of employment, the INS rules require that the employer submit a letter with the petition setting out the terms of employment. Under the rules, the letter must offer:

  • a tenured or tenure-track teaching position in the alien's field,
  • a tenured or tenure-track research position in the alien's field, or
  • a research position having no fixed term and in which the employee will ordinarily have an expectation of permanent employment, or
  • a comparable position with a private employer, accompanied by proof that the employer employs at least three full-time persons in research positions and has achieved documented accomplishments in the field.

With regard to the proof that the alien has the requisite credentials, the INS rules require that the alien submit letters from current or former employers with the petition, documenting at least three years' experience in teaching or research in the field. The letters from employers must include the name, address, and title of the writer, and a specific description of the duties performed by the alien

With regard to the requirement that the researcher or teacher be outstanding in the academic area, the rules define an academic area as a "body of specialized knowledge offered for study at an accredited U.S. university or institution of higher education." To document that the researcher or teacher is recognized internationally as outstanding, the proposed rules require submission of at least two of the following:

  • Documentation of the alien's receipt of major international prizes or awards for outstanding achievement in the academic field
  • Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members
  • Published material in professional publications written by others about the alien's work in the field (published material must include the title, date, and author, and be translated if necessary)
  • Evidence of an alien's participation, on a panel or individually, as the judge of the work of others in the same or allied academic field
  • Evidence of the alien's original scientific or scholarly research contributions to the academic field
  • Evidence of the alien's authorship of scholarly books or articles in scholarly journals with international circulation

III. Exceptional Ability Alien/Professional Holding an Advanced Degree and National Interest Waiver

The alien must first show that he/she is either a "professional holding an advanced degree" (master’s degree or higher) or an "alien of exceptional ability". In addition, in order for the alien to be exempt from the job offer requirement and labor certification procedure, the INS must determine that an exemption would be in the national interest.

The INS regulations require at least three of the following types of evidence to establish exceptional ability:

  • An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
  • Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought
  • A license to practice the profession or certification for a particular profession or occupation
  • Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
  • Evidence of membership in professional associations
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations

Other comparable types of evidence can be submitted to demonstrate exceptional ability in a particular field if the types enumerated in the rules are not applicable to that field.

INS Administrative Appeals Unit (AAU) decisions point to the following factors to determine whether the alien's admission would be in the "national interest":

  • The alien's admission will improve the U.S. economy;
  • The alien's admission will improve wages and working conditions of U.S. workers;
  • The alien's admission will improve educational and training programs for U.S. children and underqualified workers;
  • The alien's admission will improve health care;
  • The alien's admission will provide more affordable housing for young, aged, or poor U.S. residents;
  • The alien's admission will improve the U.S. environment and lead to more productive use of the national resources; or
  • The alien's admission is requested by an interested U.S. government agency.

In Aug. 1998, the INS designated "In Re New York State Department of Transportation" as its first precedent decision on issues in national interest waiver cases.

In the decision, the Associate Commissioner articulates a three-part positive test for national interest waiver approval:

  • The beneficiary must seek to work in an area of "substantial intrinsic merit";
  • The beneficiary’s work must have a benefit which "will be national in scope"; and
  • The beneficiary must "serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications." It is insufficient to simply articulate a list of skills, experience and/or educational accomplishments as the basis for national interest waiver.blank
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