The Immigration Act of 1990 provided for the first time a special expedite process for foreign nationals who are either ‘aliens of extraordinary ability,’ those whose immigration is in the ‘national interest’, or who are considered ‘outstanding researchers.’ The legal staff of The Seltzer Firm, PLLC, has successfully represented many hundreds of these foreign nationals. Given our extensive experience, we have found that in well documented cases, immigration may be possible without a job offer (except in the case of an outstanding researcher) or the necessity of completing a labor certification (PERM) process.
This information will provide a general understanding of the eligibility requirements for these types of petitions. It is for informational purposes only. If you are interested in petitioning, or would like to petition on behalf of a candidate, we strongly recommend that you seek the advice of an attorney. In order to provide a realistic assessment of the prospect for a successful outcome, we need to review the potential applicant’s curriculum vitae or resume. Once you decide to proceed with our services, we will provide you with detailed and specific guidance for the preparation of the case.
It is normally possible to apply simultaneously under more than one category. While the legal standards for each of these three types of petitions are different, the evidence required is virtually the same. Consider, for example, that evidencing special qualifications above the norm (alien of extraordinary ability and outstanding researcher) and evidencing that these qualifications will prospectively benefit the U.S. (national interest waiver) entail virtually the same documentation.
The major difference between the national interest waiver and the other two categories is that the focus is more on how the foreign national’s achievements impact the nation as a whole. On the other hand, in the extraordinary ability or outstanding researcher case, adjudication focuses on whether the foreign national meets the requisite number of regulatory criteria (described below) and whether taking the evidence of these criteria together, the foreign national can be said to stand apart in the field.
As opposed to the national interest waiver and the extraordinary ability petitions, the outstanding researcher does require an employer who is willing to act as the petitioner for the immigration visa. Moreover, the outstanding researcher case also requires evidence that the candidate has three years experience as a researcher. Other that these two differences, the criteria are primarily the same.
With regard to the national interest waiver, there is no per se standard of qualifications. Rather, a 1998 ruling by the Administrative Appeals Unit (AAU) established legal standards that are addressed in our office’s detailed cover letter. Thus, when preparing the documentation in support of the application, the focus can primarily be made on the criteria that the U.S. Citizenship and Immigration Services (CIS) established to measure an ‘alien of extraordinary ability,’ as described below:
- Original contributions of major significance to the field;
- Material published about the foreign national’s work in the field;
- Receipt of nationally recognized prizes, awards or distinctions;
- Service in a leading or critical role for distinguished organizations;
- Serving as a judge of the work of others;
- High salary in comparison with others in the field;
- Authorship of scholarly articles, abstracts or presentations; and
- Membership in societies that demand outstanding achievement.
The threshold requirement for extraordinary ability is at least three criteria, and for outstanding researcher it is at least two criteria. Nevertheless, merely meeting the requisite number of criteria will not guarantee an approval, as USCIS looks at the totality of evidence submitted to determine if an applicant is eligible for this preference category.
Preparing the Application
The first step in preparing the immigration petition is to accept that the petition is not peer-reviewed. Instead of expecting the USCIS adjudicator to understand your extremely complex and technical material, you need to present it to them in a manner that they is readily accessible. This is perhaps the most important aspect of successful EB-1 and EB-2 petitions.
In preparing these petitions, our office acts as the sample “lay people”, translating your work from technical language to that which is more familiar and comfortable. The importance of your achievements should be articulated by experts in your field, who may provide expert testimonials (reference letters). As USCIS will not be familiar with the names of individual experts in the field, we recommend asking experts from a diversity of institutions.
The criteria as described below are meant only for general review. If a decision is made to proceed with the case, a more detailed outline of these criteria will be provided:
- Significant Contributions
Please describe, in lay terms your most significant achievement in the field. This detailed description should focus on one area, walking the lay person through what was involved in your process. Please indicate where you were the principal investigator, or if not the principal investigator, what your role in the study was If the candidate is primarily a medical clinician or other type of professional, please describe in detail your area of expertise, the degree of skill required for the field, why it is significant, and any developments the candidate initiated or developed in the field.
- Honors & Awards
Evidence should include not only that you are the recipient of the award, but also details as to the competitive nature of the award: What are the selection criteria? Who selects the recipients? With who are you competing?
- Publications & Presentations
Please provide copies of all publications, abstracts and presentations (or the brochures from presentations/meetings). Please provide a brief paragraph describing in basic terms what the paper/presentation was about, and why it is significant. Please explain the significance of the forum. If you are a co-author, explain your specific contribution to the research.
- Leading and Critical Posts
Please provide a detailed description of the responsibilities for positions held, including to whom the foreign national reported, how many people the foreign national supervised, any management, administrative or policy making roles, etc. Examples of leading and critical posts include primary researcher, consultant positions, project leader.
- Judge the Work of Others
This may include positions as peer reviewer for journals, author of review articles, position on editorial boards, and abstract review for conferences.
- Membership in Societies That Require Outstanding Achievements
Please describe the criteria for membership in each society. Does it include entrance exams, evaluation by the Board, nomination and election, significant publications, number of surgical procedures, letter of reference? If possible, send us copies of the bylaws, membership application, or membership criteria with the membership certificates.
- Materials About the Foreign National’s Work
This can include any citations to the individual’s work, if there is a detailed mention of the findings.
- High Salary in Comparison to Others
Please provide W-2s, K-1s, or other evidence that demonstrates this.