(Continued from last week's article)
(i) Persons of Extraordinary Ability
An individual can establish extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.
Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. No job offer is required.
The legislative history indicates that this category is intended to be "for the small percentage of individuals who have risen to the very top of their field of endeavor."
Evidence to demonstrate "sustained national or international acclaim" could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:
1. Receipt of lesser nationally or internationally recognized prizes or awards.
2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
3. Published material about the person in professional or major trade publications or other major media.
4. Participation as a judge of the work of others.
5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
6. Authorship of scholarly articles in the field.
7. Artistic exhibitions or showcases.
8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
9. High salary or remuneration in relation to others in the field.
10. Commercial success in the performing arts. An applicant may also submit comparable evidence if the above standards do not readily apply. Comparable evidence may include expert opinion letters attesting to the applicant's abilities.
(ii) Outstanding Professors and Researchers
An individual must establish that he or she is an outstanding professor/researcher by demonstrating that he or she is recognized internationally as outstanding in a specific area and has three years of prior experience in teaching or research in the academic field.
This individual must be sponsored by an institution for a tenure (or tenure track) teaching position or a comparable position at a university or institute of higher education to conduct research. The individual may also be sponsored by a private employer to conduct research if it employs at least three persons full-time in research activities and the department, division or institution has achieved documented accomplishments in an academic field.
Evidence that the professor/researcher is recognized internationally as outstanding in the academic field must include at least two of the following:
1. Receipt of major prizes or awards for outstanding achievements.
2. Membership in an association which requires outstanding achievement.
3. Published material in professional publications written by others about the applicant's work.
4. Evidence of the person's participation as a judge of the work of others.
5. Evidence of original scientific research.
6. Authorship of scholarly books or articles in the field.
(iii) Multinationals Executives and Managers
An individual may be able to classify as an executive or manager if he or she is to be employed in an executive or managerial capacity by a U.S. parent, subsidiary, branch or affiliate of a foreign corporation. The individual must further establish that he or she worked in a managerial or executive capacity for at least one year in the past three years immediately prior to his or her entry into the U.S. in the parent, subsidiary, branch or affiliate of the U.S. entity.
(iv) National Interest Waivers
The labor certification procedure may also be avoided altogether even under the second preference if the foreign national can establish that the "job offer" requirement should be waived in the national interest. The individual must demonstrate that he or she would be doing something so significant as to benefit the U.S. national interest. In a precedent decision of the Administrative Appeals Office (In Re New York State Department of Transportation, I&N Dec.3363), a three-prong test was established:
1. The person must seek employment in an area of substantial intrinsic merit;
2. The person must demonstrate that the proposed benefit will be national in scope; and
3. The person must further demonstrate persuasively that the national interest would be adversely affected if a labor certification was required for the beneficiary, i.e., that the national benefit offered outweighs the inherent national interest in the labor certification process.
(to be continued)
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