07/29/10

First Preference and NIW Immigration Cases

Employment Based First Preference Immigrant Petitions and Petitions under the National Interest Waiver (NIW) may be filed without a Labor Certification.  The following is a discussion about the First Preference categories and the National Interest Waiver Category.

A. Extraordinary Ability

This category is essentially the counterpart to the O-1 visa category.  It requires that the immigrant establish that he or she has risen to the very top of their field of expertise through "sustained national or international acclaim" and is recognized as one of the very top few scientists, educators, business persons, artists, or athletes worldwide.  Not only is no Labor Certification required, but also the immigrant may file the petition without a sponsoring employer.

The applicant must show evidence that he or she is the recipient of a major, internationally recognized award, such as the Nobel Prize.  Alternatively, the applicant must show evidence of at least three of the ten following categories:

  1. Receipt of lesser nationally or internationally recognized prizes or awards;
  2. Membership in association in the field for which classification is sought, which requires outstanding achievement of their 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 critical role for organizations or establishments that have a distinguished reputation;
  9. High salary or remuneration in relation to others in the field; or
  10. Commercial success in the performing arts.  

B. Outstanding Professors and Researchers

Colleges, universities and private employers may sponsor their outstanding professors or researchers for immigration under the First Preference Immigrant Category, without the need for a labor certification. To qualify, the petition must meet the following requirements:

  1. The offered position must be tenured, tenure-track, or for a term of indefinite or unlimited duration, and the beneficiary would ordinarily have an expectation of continued employment, unless there is good cause for termination.
  2. The beneficiary must be recognized internationally as outstanding in the academic field, as documented by evidence of at least two of the following six categories:
    1. Documentation of the beneficiary's receipt of major prizes or awards for outstanding achievement in the academic field;
    2. Documentation of the beneficiary's membership in associations in the academic field which require outstanding achievements of their members;
    3. Published material in professional publications written by others about the beneficiary's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation. (Note: this is not a citation, but is an article about the beneficiary);
    4. Evidence of the beneficiary's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
    5. Evidence of the beneficiary's original scientific or scholarly research contributions to the academic field; or
    6. Evidence of the beneficiary's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
  3. In addition, the beneficiary must document that he or she has at least three years of experience in teaching and/or research in the academic field. (Note: Experience in teaching or research while working on an advanced degree will only be acceptable if the beneficiary has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught, or if the research conducted toward the degree has been recognized within the academic field as outstanding.)

The petition must also include a letter offering the beneficiary employment by:

  • An United States university or institution of higher learning offering the beneficiary a tenured or tenure-track teaching position in the beneficiary's academic field;
  • An United States university or institution of higher learning offering the beneficiary a permanent research position in the beneficiary's academic field; or
  • A department, division, or institute of a private employer offering the beneficiary a permanent research position in the beneficiary's academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions, and that it has achieved documented accomplishments in an academic field.

C. Managers and Executives

Eligibility for this First Preference Immigration category is limited to Managers or Executives of U.S. companies who have worked for a related company abroad for at least one year within the past three years. This requirement may be met even if the immigrant has been working for the U.S. company in the United States for more than three years if he or she worked for the related company abroad for at least one out of the last three years before entering the United States as a nonimmigrant. The immigrant’s positions in the company abroad and U.S. company must both be managerial or executive.

A “Manager” is defined by the regulations as a person with the following responsibilities:

  1. Manages the organization, a department, subdivision, function or component of the company at a senior level;
  2. Supervises and controls the work of other professional employees with the authority to: hire and fire (or recommend hiring and firing); evaluate; and direct the work of their subordinates. OR manages an essential function with the organization and functions at a senior level; and
  3. Exercises discretion over the day-to-day operations of the function.

Supervisors do not meet this requirement unless they have the authority to: hire and fire (or recommend hiring and firing); evaluate; and direct the work of professional level subordinates.

An “Executive” is defined by the regulations as a person with the following responsibilities:

  1. Directs the management of the organization or a component or function;
  2. Establishes goals and policies;
  3. Exercises wide latitude in discretionary decision making; and
  4. Receives only general supervision or direction from higher level executives, board of directors or stockholders.

D. National Interest Waiver

Unlike the three categories above, this is a 2nd Preference case.  USCIS applies the following three tests to evaluate whether the applicant’s work is in the “national interest” and merits a waiver of the requirements of employer sponsorship and labor certification:

  1. The applicant must be working in an area of "substantial intrinsic merit";
  2. The applicant's work must have a benefit which will be "national in scope"; and
  3. The applicant must "serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications."

In evaluating the applicant's prospective benefit, USCIS will consider whether the applicant's "past record justifies projections of future benefits in the national interest." The evidence must show that the applicant will continue to serve the U.S. to a substantially greater degree than would any other well-qualified, experienced and highly skilled professional, and that the applicant has exceptional ability significantly above that ordinarily encountered.