Extraordinary Ability Aliens
This category applies to aliens who have Extraordinary Ability in the sciences, arts, education, business or athletics. This ability must be demonstrated through sustained national or international acclaim, and the alien must have achievements recognized in the field through extensive documentation.
Outstanding Professors and Researchers
This category applies to outstanding professors and researchers who can show recognition internationally as outstanding in a specific academic field, at least three years of experience, and either: (1) offer of a tenured or tenure-track teaching or research position; or (2) offer of a research position having no fixed term and which the employee will ordinarily have an expectation of permanent employment; or (3) 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.
Employment Based Immigrant (Investor):
Those foreigners who meet all of the requirements for the employment-based immigrant visa will obtain permanent residency in the United States upon approval of their application. Employment- based immigrant classification is available to alien entrepreneurs coming to the United States to engage in a new commercial enterprise.
Definition of "commercial enterprise"
The three general requirements for the Employment Based Immigrant Classification are as follows:
a) the alien must establish a new commercial enterprise;
b) the alien must have invested, or is actively in the processing
of investing, capital in an amount generally not less than
$1,000,000 (in some cases it can be less); and
c) the new commercial enterprise will benefit the United
States economy and create full-time employment for no
fewer than 10 United States citizens, permanent resident
aliens, or other immigrants authorized to be employed in
the United States, other than the entrepreneur and his or
her spouse or children. There are variations available to
this requirement.
National Interest Exception
The law permits persons to avoid lengthy labor certification process normally required for permanent residents application through employment, if the person can show that he or she has at least an advanced degree in their field, and, if the INS is convinced that the person’s immigration to the U.S. would be in the National Interest.
The definition of what work would be in the national interest has not been completely resolved since the enactment of this part of the law in 1990. In general, case law has found such work to include fields that would improve the U.S. economy, improve the conditions of U.S. workers, improve U.S. health care, and improve U.S. education. There are several other procedures available, including visas for professional nurses, those who perform religious work, and others.
Labor Certification
The Labor Certificationis used when a U.S. employer offers a foreign professional a position on a permanent basis. Such position is then offered to other persons in the local market. If the applicants from the local market do not meet the minimum requirements established for the position, the position is then given to the foreigner, who then can immediately adjust to permanent residence status. Because of the length of time necessary to accomplish this procedure, the foreigner usually obtains the H-1 status or some other status so that he/she can begin working in the U.S. During the time in which the person can legally work in the U.S., the Labor Certification is pursued.
Employment-Based Immigration
Another area of immigration law where it is extremely important to document carefully is employment based petitions. For example, in the extraordinary ability, outstanding professor/research and National Interest Waiver categories, documentation and presentation are crucial. For example, Grimson v. INS, 934 F. Supp. 965 (N.D.III.1996) is instructive as to the importance of both defining and documenting the field of a petitioning immigrant. In Grimson, a Canadian professional hockey player filed a visa petition, seeking classification as a priority worker of extraordinary ability.
This petition was denied by the INS on the basis that the petitioner had failed to demonstrate that he was a player of extraordinary ability. In reversing the decision by the INS, the court held that INS had failed to properly define the field. In particular, the court instructed that INS should have compared petitioner to other hockey players who play his position and serve the same role to the team as opposed to a NHL player in general. This case is instructive as to defining ones field and building a case for extraordinary ability within this defined field.