Employment Based Immigrant Visas Not Requiring a Labor Certification

Certain individuals qualify for permanent residence without obtaining a labor certification from the Department of Labor proving shortage in the occupation. This select group of individuals who may
file the immigrant visa petition directly with the USCIS without receiving an approved labor
certification includes:

1.  Extraordinary Ability Individuals
2.  Outstanding Researchers
3.  National Interest Waiver Aliens
4.  Multinational Executive or Manager

Extraordinary Ability

An individual in the sciences, arts, education, business or athletics may qualify for the extraordinary ability immigrant visa by demonstrating that the individual is one of the small percentage who has risen to the very top of the field of endeavor. Individuals in this category only need demonstrate that they will continue to work in their field of expertise, and may petition on their own behalf. In other words, no employer petitioner is required. To meet this standard, the individual must provide either evidence of a one-time achievement
(such as a major, internationally recognized award) or meet three of the following criteria:

  • Documentation of the 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 for which classification
is sought, which require outstanding achievements of their members, as judged
by recognized national or international experts in their disciplines or fields;
  • Published material in professional or other major trade publications or major media,
relating to one’s work in the field;
  • Evidence of participation, either individually or on a panel, as a judge of the work of
others in the same or an allied field;
  • Evidence of original scientific, scholarly, artistic, athletic, or business-related
contributions of major significance in the field;
  • Evidence of authorship of scholarly articles in the field, in professional or major
trade publications or other major media;
  • Evidence of the display of work in the field at artistic exhibitions or showcases;
  • Evidence that one has performed in a leading or critical role
for organizations or establishments that have a distinguished reputation;
  • Evidence that one has commanded a high salary or other significantly high
remuneration for services, in relation to others in the field; or
  • Evidence of commercial successes in the performing arts, as shown by box
office receipts or record, cassette, compact disc, or video sales.

In general, it has become increasingly difficult to prove that an individual qualifies for
extraordinary ability status. Therefore, LMH recommends that individuals submit evidence demonstrating that the applicant meets more than three of the above-listed criteria to
successfully establish extraordinary ability in the field of endeavor.

Outstanding Professors or Researchers

Outstanding researchers or professors must demonstrate that they are recognized internationally as outstanding in their academic field. Unlike the extraordinary ability classification, outstanding researchers/professors are sponsored by their employers. The threshold requirements for this classification include:

  • The individual must hold a tenured, or tenure-track faculty position at an
university or institution of higher learning or have a comparable permanent job
offer at such establishment; OR a comparable job offer at a private company
with documented accomplishments in the academic field which employs three
full-time research personnel; and
  • The individual must have at least three years prior teaching or research experience
in the field.

Additionally, outstanding researchers/professors must meet at least two of the following
six criteria:

  • Receipt of major prizes or awards for outstanding achievements in the academic
field;
  • 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 academic field;
  • Participation, either individually or on a panel, as the judge of the work of others in
the same or an allied academic field;
  • Original scientific or scholarly research contributions to the academic field; or authorship of scholarly books or articles (in scholarly journals with international
circulation) in the academic field.

Again, normally, proof of more than two of the above criteria is needed to meet the high standard required for outstanding researcher/professor category. Like the extraordinary ability classification, to successfully petition for this category, individuals must submit voluminous documentation proving achievements in the field.

National Interest Waiver Immigrants

Individuals whose immigration to the US is in the “national interest” qualify for a national interest
waiver to the labor certification process. This category was designed to allow individuals performing highly important work in their fields to immigrate when this work would substantially benefit the US.
Like the extraordinary ability classification, individuals applying for this status may “self-petition.”
In other words, no offer of employment is needed to qualify. However, the foreign national must prove that he or she intends to work in the area which is in the national interest. Further, these individuals are classified as Second Preference visa applicants and
they must therefore, have either an advanced degree or exceptional ability in their field, as well as
meet the other criteria for proving their work is in the national interest.

The regulations do not set forth clear criteria for the type of evidence needed to prove that the alien’s work is in the “national interest.” However, CIS usually considers the following examples of work which is in the national interest:

  • Improving the U.S. economy;
  • Improving wages and working conditions in the U.S. economy;
  • Improving education for U.S. children and under-qualified workers;
  • Improving health care;
  • Providing more affordable housing;
  • Improving the environment; or
  • When an interested government agency supports the petition

Additionally, case law has established the following three-prong test for demonstrating that the
work is in the “national interest”:

  • The individual’s work must be of “substantial intrinsic merit;”
  • The proposed benefits of the individual’s work must be “national in scope;” and
  • The individual’s past record of achievement must demonstrate that he or she
will prospectively benefit the national interest to a substantially greater degree
than would an available US worker having the same minimum qualifications.

The last prong of this test requires the applicant to demonstrate achievements “with some degree
of influence on the field as a whole,” proven through a “history of valuable contribution” and a 
“critical role” in ongoing work in the field which has practical significance.  This last prong is also subjective and has been increasingly difficult to satisfy. The USCIS generally
reserves the national interest waiver category for the most highly and uniquely skilled individuals.

Multinational Executives or Managers

Multinational executives or managers of multinational companies who are transferring to,
or are currently working in the US, may apply for a First Preference immigrant visa. To qualify,
the individual must meet the following criteria:

  • The individual must have been employed outside the US in a managerial or
executive capacity for one of the preceding three years (of either filing the
application, or if the individual is currently employed in the US, of entering
the US);
  • The individual must have been employed by an affiliate, subsidiary, or the
same employer as the firm, corporation, or other legal entity that employed
the alien abroad; and
  • The individual has a permanent job offer from the US company to work in
an executive or managerial position.

The multinational executive or manager category closely resembles the L-1A visa category. 
Therefore, many people who qualify for L-1A visa status will also qualify for a multinational 
executive or manager immigrant visa and can circumvent the labor certification process. However, 
it is important to note that L-1A status is not a prerequisite for a multinational executive or
manager immigrant visa. Therefore, individuals in another visa category, or who are outside the
US may apply for this immigrant visa category without first obtaining L-1A status. Conversely,
although the regulations are similar, L-1A visa status does not guarantee the approval of a
multinational executive or manager immigrant visa.

Conclusion

Because of the stringent criteria and scrutiny that the USCIS places on the extraordinary ability, outstanding researcher, national interest waiver and multinational executive categories, these
immigrant visa petitions involve substantial preparation. Upon filing with the USCIS the immigrant
visa petition receives its priority date, or preserves its place in line for the allocated visa numbers
for that fiscal year. Presently, backlogs exist for some nationals in some preference categories.
In other words, these nationals must wait until their priority date is current before applying for
permanent residency. Alternatively, those nationals whose visa numbers are “current” and who
are not subject to visa backlogs, may file their applications for adjustment of status concurrently
with the immigrant visa petition.

As discussed in the “Adjustment of Status versus Consular Processing” portion of this website,
the individual may apply for work authorization and travel authorization independent of any
non-immigrant status while the adjustment of status application is pending.



Copyright © 2009 Law Offices of Melissa Harms All rights reserved.


The above discussion is provided for informational purposes only and is not intended as legal advice nor does it create an
attorney-client relationship. Individuals should visit a licensed attorney to evaluate the legal circumstances surrounding their
situation and to receive appropriate legal advice.