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U.S. Immigration has two main categories: permanent residence visas (also called “immigrant visas” or “green cards”) and temporary residence visas (also called “nonimmigrant visas”).
For workers with extraordinary ability, the EB-1 category for “aliens with extraordinary ability” is the categories most often used to qualify for a green card.
To qualify for the EB-1 green card as an Alien with Extraordinary Ability, an applicant must prove all of the following:
- 1. The foreign-born individual has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.
- 2. The foreign-born individual has a one-time achievement (that is, a major, international recognized award), 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 major trade publications or other 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 disk, or video sales.
- 3. The foreign-born individual will continue to work in field of endeavor (note that no specific employer or sponsor is required) and
- 4. The foreign-born individual will substantially benefit prospectively the United States.
A worker who is extraordinary or has special qualifications can also qualify for a green card it the EB-2 or EB-3 categories. These are:
- EB-2: for aliens with exceptional ability or aliens with advanced degrees (employer/sponsor usually required)
- EB-3: for professional workers (with university degree), skilled workers and unskilled workers (employer/sponsor required)
The EB-2 and EB-3 green card categories usually first require a preliminary step called, PERM Labor Certification. In this step, the employer must show the U.S. Department of Labor (DOL) that it cannot find a qualified and available U.S. worker to do the job that it wants to give the foreign worker. The employer must also agree to offer a wage that matches or exceeds the “prevailing wage rate” paid by others in the area (based on government salary survey) or the wage paid by the employer to other workers in the same job at the employer’s business. The purpose is to make sure that the employer is not taking advantage of the foreign worker and paying less than what it would cost to employ U.S. workers. A foreign worker cannot be employed by the employer during step 1 unless the foreign worker has a temporary visa that permits employment. This step generally takes about 1 year, though processing time can be over 2 years if the case is audited by the DOL.
A worker who is extraordinary or has special qualifications can also qualify for a green card in the EB-2 and can avoid PERM Labor Certification, if the worker can show:
- 1. He or she is either an advanced degreed professional OR has exceptional ability and
- 2. It would be in the national interest to grant the worker permanent residence (national interest waiver) or
- 3. He or she is “exceptional under Schedule A Group II,” which is a list of criteria that is difficult to satisfy but slightly less difficult that the “extraordinary ability” standards.
The most common temporary visas for foreign-born individuals with extraordinary ability or special qualifications are as follows:
O-1 Visas for Aliens with Extraordinary Ability who are seeking temporary employment. This visa is issued for up to three years and can be renewed in one-year increments. This visa requires an employer or an agent in the U.S. to file the visa petition. The employer or agent must show that the foreign-born individual has extraordinary qualifications in his or her field of endeavor. The standard for artists is less difficult than the standard for athletes and coaches.
H-1B Visas for Workers in Specialty Occupations, which permit employment of professional level workers by a sponsoring employer. The visa is issued for up to three years and can be renewed another three years (additional renewals are possible in some cases). This visa is not that common for investors, but can be useful if the investor does not qualify or an E-2 Treaty Investor Visa. The investor would essentially be an employee of his or her own business. Note that the investor must be employed in a position that normally requires a university degree and must have earned a university degree or the equivalent in education and work experience.
Jaensch Immigration Law Firm is experienced in all of these green card and temporary visas.
Relevant Visas & Topics
EB-1 and EB-2: Special Qualifications
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