(EB-2) OUTSTANDING RESEARCHERS, ADVANCED DEGREE HOLDERS, FOREIGN NATIONALS OF EXCEPTIONAL ABILITY AND NATIONAL INTEREST WAIVERS

This memo summarizes and discusses the possibility of classifying you as an outstanding researcher and the possibility of petitioning for you as an advanced degree holder or person of exceptional ability with a waiver of the labor certification requirement being in the "national interest." Both petitions permit you to skip the labor certification process and obtain an immigrant visa. This process will be significantly less time-consuming than a regular labor certification and, of course, much less expensive.

OUTSTANDING RESEARCHERS

The provisions governing outstanding researchers and professors were first authorized by Congress in the Immigration Act of 1990. Since that time, United States Citizenship and Immigration Service (“USCIS”) regulations and decisions have clarified the requirements of and necessary documentary evidence for proving that one is an "outstanding researcher and/or professor." Currently, the USCIS requires you to prove your outstanding nature in your field by submitting items in at least two of the following areas:
  1. Documentation of your receipt of major prizes or awards for outstanding achievement in the academic field;
  2. Documentation of your membership in associations in the academic field which require outstanding achievements of their members;
  3. Published material in professional publications written by others about your work in the academic field. This material must include the title, date, and author of the material and any necessary translation;
  4. Evidence of your 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 your original scientific or scholarly research contributions in the academic field; or
  6. Evidence of your authorship of scholarly books or articles in scholarly journals with international circulation in the academic field.
We must also establish that you have at least three years of experience in teaching and/or research in the academic field. Experience in teaching or research while working on an advanced degree is acceptable only if you actually acquired the degree, and the teaching duties were such that you had full responsibility for the class taught, or the research conducted toward the degree has been recognized within the academic field as outstanding. Evidence of teaching and/or research experience must be in the form of letters(s) from current or former employer(s) and must include the name, address, and title of the writer, and a specific description of the duties you performed. Finally, you must also have an offer of employment for a permanent research position in your academic field.

ADVANCED DEGREE HOLDERS, EXCEPTIONAL ABILITY ALIENS, AND THE NATIONAL INTEREST WAIVER

You may also qualify for permanent residence through two separate classifications of the employment-based second preference immigrant category. First, the "Advanced Degree Holder" classification permits persons who are members of the "professions" holding advanced degrees to seek permanent residence through either a labor certification or through a "national interest waiver" of the labor certification requirement. A "profession" is defined under immigration rules as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the usual minimum requirement for entry into the occupation. An advanced degree has been defined to be any U.S. academic or professional degree or a foreign equivalent above that of baccalaureate.
A Ph.D. or Master’s degree will be sufficient to qualify you as an "advanced degree holder" as your occupation also is one that typically requires a person holding such an advanced degree.

EXCEPTIONAL ABILITY

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 following items in your case:
  1. Letters from prominent individuals within your research area describing the need for your continued services in this research area;
  2. U.S. government policy statements on the national interest area (we will obtain these);
  3. Letters from other respected persons in the field recognizing your abilities in your field (preferably former colleagues); and
  4. A letter from U.S. University professors or researchers describing your abilities, and the need for your research services in the United States (attached is a sample letter).
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 memo is a rather brief synopsis of complex process, it does convey the quality and quantity of documentation we should submit. We are 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.
Please send to us the documentation verifying those criteria that you satisfy, including copies of all articles about you and your work published in journals from the academic field; evidence of your own scholarly research; copies of any documents verifying awards you may have won or received; copies of all article(s) you may have written (we have the English language articles), your curriculum vitae, and several letters of reference. Attached is a sample letter for you to use in obtaining references from colleagues in your field. You should plan on obtaining at least five to seven of these letters.
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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