Avoiding the Labor
Certification:
Extraordinary Ability and The National Interest Waiver
By Michael A. Bander and Stephen M. Bander
Published in the 22nd
Annual Immigration Law Update presented by The Florida Bar Continuing
Legal Education Committee, The American Immigration Lawyers Association
(AILA), South Florida Chapter, and the International Law Section
I. INTRODUCTION
Under current law, employment-based immigration is categorized in a
preference system. The First Preference covers priority
workers, including aliens with extraordinary ability in the fields
of the sciences, arts, education, business, or athletics.
Within the alien of extraordinary ability classification, a petitioner
needs no job offer or labor certification. The Second Preference
is for members of professions holding advanced degrees or having exceptional
ability in the sciences, arts (including athletics), or business. Within the Second Preference, a petitioner must have a job
offer and labor certification. However, this requirement may be waived if in the national interest.
This article will focus on
avoiding the labor certification process by seeking residence based
on: extraordinary ability classification or the national
interest waiver.
II. EXTRAORDINARY
ABILITY
The classification for aliens with extraordinary ability is the first
of three within the First Preference of employment-based immigrants
(“EB-1”) specified in the Immigration Act of 1990 (the “Act”)
at §203(b)(1), 8 USC §1153(b)(1).
Unlike other groups of employment-based
immigration, aliens with extraordinary ability need no offer of employment and
are exempt from the labor certification requirement. See 8 CFR 204.5(h)(5). The alien may petition on his or her own behalf.
A. Who qualifies
as an Alien with Extraordinary Ability?
1. Eligibility
is limited to persons in the sciences, arts, education, business,
or athletics. Eligible aliens are limited to persons in
the sciences, arts, education, business, or athletics,
[1] whose extraordinary ability “has been demonstrated
by sustained national or international acclaim and whose achievements
have been recognized in the field through extensive documentation.”
INA §203(b)(1)(A)(i); 8 USC §1153(b)(1)(A)(i) (emphasis
added). The regulations generally define extraordinary ability as
“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.” 8 CFR §204.5(h)(2) (emphasis added).
The broad statutory language
suggests only Nobel laureates in the “sciences,” Olympic
champions in “athletics,” and Academy-award winners in
the “arts” need apply. However, eligible abilities
can be further narrowed to sub-specialties. Bridal-dress designers,
video jockeys, master chefs, fashion models, interior designers, and
many other have entered the U.S. as aliens with extraordinary ability.
2. Alien
must seek entry to United States to continue work in the area of extraordinary
ability. The alien must provide clear evidence he or she
is entering the United States to continue work in the area of extraordinary
ability. INA §203(b)(1)(A)(ii); 8 USC §1153(b)(1)(A)(ii).
Relevant evidence could include letters from prospective employers,
prospective employment contracts, or a statement detailing the beneficiary’s
plans for continuing to work in his or her area of expertise.
See 8 CFR §204.5(h)(5).
3. Alien
must show that entry will substantially benefit prospectively the
United States. An extraordinary ability petitioner must
also show that entry into U.S. will substantially benefit prospectively
the United States. INA §203(b)(1)(A)(iii); 8 USC §1153(b)(1)(A)(iii).
Although a specific requirement in the Act, this criterion is ignored
by the regulations. USCIS Service Centers may not require evidence
establishing the petitioner will substantially benefit the United
States. [2] However, this
statutory criterion has also been used by the AAO, in part, to find
deficiency in a petition. [3] Normally,
though, meeting the other statutory standards for extraordinary ability
implies providing substantial prospective benefit to the country.
B. What evidence
is needed to document “extraordinary ability?”
1. Alien
must document sustained national or international acclaim.
Evidence submitted must show “sustained national or international
acclaim and . . .achievements [that] have been recognized in the field
of expertise.” 8 CFR §204.5(h)(3) (emphasis added). Only sustained national or international acclaim need be shown, not
both. [4] Evidence of a one-time
achievement – defined as a major, international award –
will satisfy this requirement. 8 CFR §204.5(h)(3)
Otherwise, documentation of at least three of the following ten criteria,
or comparable evidence within an eleventh catchall criterion, must
be presented. Id. [5]
i. Receipt
of lesser nationally or internationally recognized prizes or awards
for excellence;
Relevant evidence for
this criterion includes proof of recognition such as fellowships,
scholarships, research grants, distinguished lectureships, national
or international rankings, or awards at high-profile competitions.
ii. 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;
Not all professional
associations will qualify. Petitioner should attempt
to show an association based membership on merit, as recognized
by peer review, to satisfy this requirement.
iii. Published
material about the alien in professional or major trade journals
or other major media;
Most petitioners should
be able to satisfy this criterion with news and magazine features
regarding themselves or their work. However, a publication
may be found to be unacceptable evidence if not properly translated
or cited. See 8 CFR §204.5(h)(3)(iii).[6]
iv. Individual
or panel participation as a judge of the work of others in the same
or an allied field;
Proof of book of research
reviews, participation on Ph.D. dissertation committees, service
on the editorial board of journals, coaching, and training
may be sufficient evidence for this criterion.
v. Original
scientific, scholarly, artistic, athletic, or business-related contributions
of major significance;
It must be established
that the contribution is both original and of major significance.
Credentials of the person or authority attesting to the originality
and significance may be critical. Also to be considered is
submitting proof of publication in a prestigious academic journal
which requires original work.
vi. Authorship
of scholarly articles in the field in professional or major trade
publications or other major media;
Presumably, a well-regarded
film or radio documentary would also qualify here, or under the
eleventh catchall option.
vii. Display
of alien’s work at artistic exhibitions or showcases;
Sufficient evidence may
include concert billings, playbills, programs, reviews, and catalogues.
viii. Evidence
that the alien has performed in a leading or critical role for organizations
or establishments that have a distinguished reputation;
Serving on the board
of directors of a professional association, organizing artistic,
athletic or educational events, and advising an organization’s
board on important matters may be sufficient evidence for this category.
ix. A high
salary or remuneration compared to others in the field;
When deriving salary,
the petitioner should remember to include all compensation. Fringe benefits like drivers or bodyguards may be more common overseas
than in the United States.
x. Commercial
success in the performing arts; and
Suggested evidence is
box office receipts or record, cassette, compact disc, or video
sales. 8 CFR §204.5(h)(3)(x).
xi. Other comparable
evidence if the above standards do not readily apply to the alien’s
occupation.
A petition should always
include expert opinion letters attesting to the petitioner’s
abilities, contributions, acclaim, etc.
III. THE NATIONAL INTEREST WAIVER
Unlike aliens who qualify
under the extraordinary ability provision of the law, applicants under
the Second Preference generally require a job offer and labor certification. However, the labor certification for Second Preference applicants can
be avoided—labor certification requirement can be waived if
in the national interest. INA §203(b)(2)(B), 8 USC §1153(b)(2)(B). Unfortunately, an evidentiary standard established in a recent USCIS precedent
decision makes qualifying for a national interest waiver an uphill battle
for most petitioners
A. What is
the evidentiary standard for a national interest waiver?
Standard for approval of
a national interest waiver (a “NIW”) has three
evidentiary burdens for the petitioner. On August 7, 1998, the
AAO designated the decision in Matter of New York State Dept. of Transportation,
Int. Dec. 3363 (Commr. 1998) (“NYSDOT”) precedent. For a NIW, USCIS requires demonstration of the following
1. Area of
intended employment is of substantial intrinsic merit;
2. The proposed
benefit is national in scope; and
3. It must
be persuasively demonstrated that the national interest of the United
States would be adversely affected if a labor certification were
required.
Failure to demonstrate
the third evidentiary criterion is frequently used by USCIS as its
reason for denial. Under this criterion, a petitioner
is now requested to demonstrate service to the national interest
by a record of achievement with a degree of influence on the field
as a whole or a significant national impact on the field.
This becomes more burdensome as USCIS frequently discredits the evidentiary
value of statements submitted by petitioner’s employers, supervisors,
former professors, dissertation referees, or associates as biased
and of minimal probative value.[7]
Accordingly, it has now become difficult to qualify for a
NIW.
Health professional shortage
area (“HPSA”) physicians, especially, have relied on
the NIW process. Following NYSDOT, however, HPSA physicians
were being dismissed under the third criterion.[8]
But now Pub.L. 106-95 §5 set up specific qualifications
for physicians in shortage areas to obtain a NIW.[9]
For trends in petitions involving NIW under the NYSDOT standard
for particular occupations, such as researchers, the author recommends
New York State Department of Transportation: National
Interest Waivers One Year Down the Road, as reported in 76 Interpreter
Releases 1641 (Nov. 15, 1999), written by Nathan A. Waxman.
[1] Extraordinary ability in the practice
of other professions, like law, without more, would not qualify in the
EB-1 category. Legal Opinion, Aleinikoff, General Counsel,
USCIS, CO 203-P (Jan. 20, 1995), reprinted in 72 Interpreter Releases
184 (Jan. 30, 1995).
[2] See
72 Interpreter Releases 433 (March 27, 1995) (summary of Edward H. Skerret’s,
Chief of the Immigrant Branch at the INS’ Office of Adjudications,
March 13, 1995 written response to an inquiry where Skerret states a
Service Center may not require evidence to establish petitioner will
substantially benefit the U.S. since the regulations do not require
the submission of such evidence; however, Skerret writes that the language
of INA §203(b)(1)(A)(iii) can also not be “written off or
discarded” and that there may be very rare instances where the
person’s admission may be damaging or detrimental to the interests
of the U.S.).
[3]
See 77 Interpreter Releases 130 (Jan. 24, 2000) (summary of Matter of
[name not provided], EAC 98 118 52573 (AAO Aug. 30, 1999) (AAO dismissed
appeal of writer and journalist, in part, for failing to show entry
would substantially benefit the United States)).
[4]
See, e.g., Buletini v. USCIS, 860 F. Supp. 1222, 1230-31 (E.D. Mich.
1994) (acclaimed Albanian physician met extraordinary ability standard
though lacking international recognition).
[5]
However, anecdotally, even providing sufficient evidence under at least
three criteria still might not be sufficient for USCIS to find a petitioner
one of that small percentage who have risen to the very top of the field
of endeavor.
[6] See 77 Interpreter Releases 130 (Jan. 24, 2000) (summary of Matter of
[name not provided], WAC 99 057 50013 (AAO Aug. 23, 1999) (appeal dismissed,
for among other things, the petitioner having furnished several Chinese
documents accompanied by purported translations, but none of the translations
was certified, and the translator’s name was not given)).
[7] Nathan A. Waxman, New York State Dept. of Transportation: National
Interest Waivers One Year Down the Road, as reported in 76 Interpreter
Releases 1641 (Nov. 15, 1999).
[8]
Id.
[9] Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook, at 499 (7th Ed.
2000).
