OBTAINING PERMANENT RESIDENCY: OPTIONS FOR PROFESSORS, RESEARCHERS, AND POST-DOCS

An individual may qualify for permanent residency in the United States as a priority worker. For academicians and researchers, a priority worker is characterized as one who has extraordinary ability OR those who are outstanding professors and researchers.

1.) ALIENS OF EXTRAORDINARY ABILITY

Under U.S. Immigration Laws an individual will qualify as a priority worker as an Alien of Extraordinary Ability if:

• the alien has 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,

• the alien seeks to enter the United States to continue work in the area of extraordinary ability, and

• the alien's entry into the United States will substantially benefit prospectively the United States.

A person of extraordinary ability is defined as a person demonstrating a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor and that the alien has sustained national or international acclaim and whose achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (i.e., the Pritzker Architecture Prize, Pulitzer Prize, or Nobel Prize), or at least three of the following:

• Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

• Documentation of the alien's 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 about the alien in professional or other major trade publications or major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

• Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

• Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

• Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

• Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

• Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

• Evidence that the alien 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.


It should also be noted that the list above is not exhaustive as the immigration services will allow comparable evidence as proof of extraordinary ability. A checklist approach in satisfying three of the criteria above does not automatically guarantee approval of the petition. Rather the quality of one’s work, reputation of the publisher, or citations of one’s work by other scholars in the field is essential in a successful petition.

A single reference letter written by a Nobel Laureate about the extraordinary nature of the beneficiary may be sufficient to carry the petition to approval. In contrast a library of letters written by individuals who are not top tier members of the profession will not likely impress the adjudication officer. For example in a recent case, a Japanese sculptor was seeking admission to the United States as an Alien of Extraordinary Ability. Her petition was approved based on her body of work and a single letter from a Chinese artist of international renown whose work had been recognized by the United Nations.

A beneficiary of the petition may also wish to include a citation index showing the number of times his or her work has been cited by others in his or her field. Additionally, if submitting publications, the quality of the professional journal or publisher will also matter, where a well known publisher or recognized journal will be given more weight than self published materials or those of vanity presses.



Entry to Work in the Field of Extraordinary Ability

Beneficiaries of an “extraordinary” petition do not need a U.S. sponsor or employer. The requirement is that the beneficiary must be coming to continue work in the area of his or her expertise. Further, the work need not be in the same research area that initially brought the beneficiary fame so long as it is in the same field. Satisfying this requirement would be easier if the beneficiary already had an employer or a prospective employer. Generally, evidence needed to satisfy this requirement include: 1.) employer letters from current employers or prospective employers verifying a job opportunity, 2.) employment contracts, 3.) a detailed statement from the beneficiary on how he or she will continue their work in the area of expertise, or 4.) any other documentary evidence relevant to meet this requirement.

Substantial Benefit Prospectively to the United States

The final requirement is that the beneficiary will substantially benefit prospectively the United States. The immigration services will generally assume that this requirement is met if the beneficiary is working in an area of expertise as a person of extraordinary ability. This requirement is generally linked with the indices for extraordinary ability stated earlier in this article.


2.) OUTSTANDING PROFESSORS AND RESEARCHERS

An academic will qualify as a priority worker if he or she meets the following criteria:

• the alien is recognized internationally as outstanding in a specific academic area,

• the alien has at least 3 years of experience in teaching or research in the academic area, and

• the alien seeks to enter the United States,

• for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,

• for a comparable position with a university or institution of higher education to conduct research in the area, or

• for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

3.) FILING PROCEDURE

A beneficiary must file a form I-140, Immigrant Petition for Alien Worker with the United States Citizenship and Immigration Service Center having jurisdiction over the petition. As of the writing of this article all I-140 visa petitions are filed with the Nebraska Service Center. The current filing fee is $475.

If the beneficiary is outside the U.S. then he or she will obtain permanent residency through a U.S. Consulate abroad. If the beneficiary is in the U.S. then they may, in some circumstances, file an application for permanent residency at the same time they file the I-140 visa petition. As of this writing all priority worker beneficiaries may file concurrent applications for permanent residency with the I-140 visa petition. The application for permanent residency is the form I-485, Application to Adjust Status. If filing form I-485 then one may also file form I-765, Application for Employment Authorization, and form I-131, Application for a Travel Document. The current fee for form, I-485 is $1010 (which includes the biometric fee). Currently there is no filing fee for the initial filing of an applications to obtain a work authorization and travel document. Note: Filing fees are subject to change therefore it is important to ascertain the correct filing fee before filing.

Immigration Visa Backlog - Options for Employer and their Foreign Workers

According to the December, 2007 Visa Bulletin foreign workers falling in the EB-3 category and EB-2 workers from Mainland China and India will be affected by a severe backlog of visa numbers. This means there are more individuals wishing to immigrate than there are allotted visas. As a result, foreign workers in the effected categories may have a wait time exceeding 5 years before they are able to file an application to adjust status to that of a permanent resident.

Filing a New Labor Certification as an EB-2

The same employer who had filed an EB-3 application for a foreign worker may file a new labor certification for EB-2 classification for the same foreign worker if the job offer as an EB-2 is bona fide and the foreign worker possesses the requisite educational and employment experience that meets the criteria for EB-2 classification.

If there is a bona fide job offer as an EB-2 and the foreign worker is qualified, filing a new labor certification as an EB-2 may eliminate or dramatically reduce their backlog wait time. This may be especially advantageous for employers who have already filed and have an I-140, Visa Petition approved for a foreign worker. If the I-140 for EB-3 classification has already been approved, the foreign worker may seek to retain the old priority date on the new I-140 as an EB-2.

Filing a New Petition as an EB-1

A petition for EB-1 can be filed for aliens of extraordinary ability, multi-national executives and managers, and outstanding researchers or professors. Though rare, we have seen cases that should have been initially filed as EB-1s instead filed as EB-2s, or EB-3s. Those individuals may wish to file a new visa petition as an EB-1 to avoid the backlog. Those with EB-2 or EB-3 I-140 Visa Petitions already approved can seek to retain the priority date of the initially approved I-140.

Individuals may be tempted to file a new petition in an attempt to circumvent the severe backlog. However, a new petition should not be filed unless there is real merit to warrant such a filing. As such a careful examination of your current job duties and its requirements should be made in contrast to the job duties and requirements on which the first petition was based.

No Downside

Many employers and foreign workers have expressed concerns that a new petition may jeopardize their approved visa petition. However, a new labor certification and visa petition as an EB-2 represents a new job offer that is separate and apart from the job offer that supported the EB-3 labor certification and visa petition.

In the case of filing a new petition as an EB-1, one is merely filing a petition seeking benefits in a classification they qualified all along, but had instead chosen to file the initial labor certification and visa petition as an EB-2 or EB-3. There is no risk to the approved visa petition if there is a legitimate step up in job duties, job requirements, and the foreign national qualifies for the new position as an EB-2 or if the foreign worker could have initially filed as an EB-1, but did not.