EXTRAORDINARY ABILITY

There are very specific types of evidence which the United States Citizenship and Immigration Services ("USCIS") will accept as proof of your extraordinary ability. Please keep in mind that "extraordinary ability means 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, and therefore is not easily obtained." The regulations require that an individual who seeks classification as a person of extraordinary ability must submit at least three of the following types of proof that you have sustained national or international acclaim and that your achievements have been recognized in your field of expertise:
  1. A major internationally recognized award (e.g. Nobel Prize or Oscar);
  2. Documentation of your receipt of lesser nationally or internationally recognized prizes or award for excellence in the field of endeavor;
  3. Documentation of your membership in associations in the field for which classification is sought (art or architecture), which membership requires outstanding achievements of its members, as judged by recognized national or international experts in their disciplines or files;
  4. Published material about you in professional or major trade publications or other major media, relating to your work in the field for which classification is sough (art or architecture). This evidence must include the title, date, and author of the material, and any necessary translations;
  5. Evidence that you have participated, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
  6. Evidence of your original artistic contributions of major significance in the fields of art or architecture;
  7. Evidence of your authorship of scholarly articles in the field, in professional or major trade publications or other major media;
  8. Evidence of the display of your work in at artistic exhibitions or showcases;
  9. Evidence that you have performed a leading or critical role for organization or establishments that have a distinguished reputation;
  10. Evidence that you have commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
  11. Evidence of commercial successes in the performing arts, as shown by box office receipts, or record, cassette, compact disc or video sales.
We must also submit evidence that you will continue to work in the field of business once you are granted permanent resident status. We can submit letters from prospective employers or even a statement from you detailing your plans for continuing your work here to meet this requirement.

EXCEPTIONAL ABILITY AND THE NATIONAL INTEREST WAIVER

The second preference immigrant classification also permits a person of "exceptional ability in the sciences, arts, or business" to qualify for a waiver of the job offer and labor certification requirements. "Exceptional Ability" has been defined as possessing a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. To prove your qualification for this category, we would need to show at least three of the following:
  1. An official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, or other institution of learning relating to the area of exceptional ability;
  2. Evidence in the form of letter(s) from current or former employer(s) showing that you have at least ten years of full-time experience in the occupation for which you are being sought;
  3. A license to practice the profession or certification for a particular profession or occupation;
  4. Evidence that you have commanded a salary or other remuneration for services which demonstrate exceptional ability;
  5. Evidence of membership in professional associations; or
  6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

NATIONAL INTEREST WAIVER

The most difficult part of this process, however, is the "national interest" waiver of the labor certification requirements. Congress has determined that the USCIS may waive the requirements of a job offer, and thus a labor certification, for advanced degree holders and persons of exceptional ability in business, if that waiver would be in the "national interest." Neither Congress nor the USCIS has ever officially defined "national interest," although recent interpretive decisions by the Administrative Appeals Unit of the USCIS, and other sources, give some guidance on what the USCIS is likely to consider "in the national interest."
In its most authoritative decision to date on this question, the USCIS has noted several factors which may be considered in applying the national interest test to an alien of exceptional ability in business. These factors are:
  1. Improving the U.S. economy;
  2. Improving wages and working conditions of U.S. workers;
  3. Improving education and training programs for U.S. children and under-qualified workers;
  4. Improving health care;
  5. Providing more affordable housing for young and/or older, poorer U.S. residents;
  6. Improving the environment of the U.S. and making more productive use of natural resources; or
  7. A request from an interested U.S. government agency.
The proof of the seven factors noted above varies widely depending on the occupation of the person applying for the waiver. In addition to the required forms, we would like to submit some or all of the items listed below. In addition to this evidence, we will submit a cover letter/brief summarizing the evidence and arguing why waiver of the job offer/labor certification requirement would be in the "national interest."
Although this is a rather brief synopsis of complex process, it does convey the quality and quantity of documentation we should submit. I am sure you also understand the vagaries of the USCIS and the possibility of incorrect decisions. For this reason, we want to present USCIS with the most complete and detailed petition possible. We would also require your assistance is gathering some of the letters and information described above, as well as completing the enclosed background questionnaire.
To the extent you have any additional publications, or have any additional evidence satisfying the categories outlined above, please let me know immediately so that I can direct your effort to obtain proper documentation.
If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys.

Disclaimer/Reminder


This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Copyright © 2015 Kuck Immigration Partners LLC. All rights reserved.

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