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For certain people, the best route to permanent residence may be to seek approval of an immigrant petition in one of the classifications below. The three categories, extraordinary ability, outstanding researcher and national interest waiver, offer a route to permanent residence that does not require the lengthy labor certification process. Two of the categories do not require an offer of employment and so can be filed by an individual. The standards for approval are, however, stringent. Please keep in mind that the classifications below are the first step in applying to become a permanent resident. You must also file, either concurrently or subsequent to approval of the immigrant petition, an application for permanent residence or seek an immigrant visa through consular processing. An explanation of this last component is addressed below.
The extraordinary ability classification (EB-1) is only available to a small segment of workers who can demonstrate their extraordinary abilities place them at the very top of their fields. The USCIS lists evidence like a Nobel Prize as evidence that might show that you qualify for this category. In reality, many people who have not (yet!) received a Nobel can qualify in this category. Nevertheless, the requirements are stringent. As we begin the process of preparing your petition, we will provide you with specific guidelines, samples, and recommendations regarding the necessary evidence you must provide to establish your qualifications to be classified as an individual of extraordinary ability. In general, you must be able to present sufficient evidence in the categories list below.
To seek classification as an outstanding researcher/professor (E-1, 2) you must present evidence that demonstrates that: you have at least three years of experience in teaching or research; you are seeking a permanent residence to remain in the United States to work for an employer that normally employs at least three persons full time in research activities and who has offered you “permanent” or tenure track employment; and finally that you are recognized internationally as outstanding in your area of expertise. As evidence of international recognition, you will be expected to present evidence of at least three of the following:
In approving a national interest waiver (NIW) petition, the U.S. Department of Homeland Security is “waiving” several of the requirements which usually apply to an employment-based immigrant petition, including the labor certification requirement. This type of waiver is highly desirable and is only available to exceptional workers or professionals with advanced educational degrees whose work is considered to be in the national interest of the United States. You must prove that you have had some impact on your field, and that your contributions are exceptional in that they exceed what is normally expected from someone with a similar background and training. You will be expected to present evidence from the following categories:
Assuming an immigrant visa is available, you (and your spouse and children under 21) may file your application for Adjustment of Status (I-485) concurrently with the immigrant petition or upon approval. This application is intended to document that you are legally present in the U.S. and not excludable due to communicable disease, criminal convictions, etc. When you file for adjustment of status, you may also file for employment authorization (work permit), allowing you to work while the process is concluded. Sometimes an adjustment case cannot be filed if you have violated their status in some way.
You will need to have a physical examination by a CIS approved physician. (This examination will assess health with specific statutory concerns in mind, e.g., TB, AIDS, whether the worker has had certain vaccinations, etc.) You will have to provide fingerprints, letters confirming employment, birth certificates, etc. We will assist you in meeting the evidentiary requirements.
Once the I-485 application is filed with the CIS, you and any family members may not travel outside the U.S. without advance permission from the CIS unless you hold valid H-1B or L status. Advance permission is almost always granted for adjustment applicants, but it can take several months.
Once the CIS has finished its background check, determined that the application is complete, and verified that the employee’s “priority date” remains current, the CIS will either simply approve the case or schedule an interview at the local CIS District Office. If the priority date is not current, the file will be set aside and will be reexamined when the priority date becomes current again. Sometimes, the employee will have to update his or her fingerprints or medical examination before the case can be approved. The CIS will notify the individuals if this is necessary.
Immigrant visa processing through a U.S. consulate follows the general pattern of adjustment filings. Once the I-140 case has been approved, the DOS’s National Visa Center will send out a fee bill for the case. Once this is paid, certain paperwork is requested and the file is sent to the proper consulate for an interview. If the interview substantiates the offer of employment and that the worker is eligible for admission to the U.S., an immigrant visa is issued, and the worker becomes a permanent resident once he or she uses that visa to enter the U.S.
