October - 2003 issue > Career

By Anja Freudenthal

THE “GREEN CARD” process begins for many through a petitioning family member, or for a select few through the diversity visa program , and for some with an offer of permanent employment by a U.S. employer. This article will give a brief overview of employment-based immigration options for professionals without the need for labor certification.

The Immigration and Nationality Act (INA) at Sections 201(d) and 203(b) provide for 140,000 annual permanent residence visas through employment. This number allocates certain percentages to five preference categories and creates a priority system, which determines the length of time a person is in line for an available immigrant visa. Historically, these categories have been backlogged, and more recently, have been current for all immigrant visa categories.

The First Preference is reserved for Priority Workers who are either • Aliens with extraordinary ability, • Outstanding professors and researchers, or • Multinational executives and managers. The Second Preference category is allocated to Advanced Degree Professionals and Exceptional Ability Aliens. The Third Preference category is the most prescribed category as it covers Skilled Workers, Professionals and Other Workers. The Fourth Preference category is reserved for Certain Special Immigrants, and the Fifth Preference category covers Employment Creation Immigrants or Investors.

First Preference (Priority Workers)
One of the advantages to foreign workers who are eligible to immigrate as Priority Workers is that no labor certification is required. Moreover, Aliens of Extraordinary Ability may self-petition without the need for a job offer and must show an intention to continue to work in the area of expertise once they have immigrated. Petitions for Outstanding Professor and Researchers and Multinational Executives and Managers are also exempt from the labor certification process but require a job offer by a U.S. employer. Thus, the immigrant visa process for all three categories of Priority Workers is initiated by filing a petition with the U.S. Citizenship and Immigration Services (US CIS).

Regulations require of Aliens with Extraordinary Ability to heavily document their extraordinary ability through either a one-time achievement, such as receipt of a major, internationally recognized award like the Nobel or Pulitzer Price, or at least three of ten listed areas: (i) receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (ii) membership in associations that require outstanding achievements of their members, as judged by recognized national or international experts; (iii) published material about the applicant in professional or major trade publications or other major media; (iv) participation as a judge of the work of others; (v) original scientific, scholarly, artistic, athletic, or business-related contributions of major significance; (vi) authorship of scholarly articles in the field; (vii) artistic exhibitions or showcases; (viii) Performance in a leading or critical role for organizations or establishments that have a distinguished reputation; (ix) high salary or other significantly high remuneration for services, in relation to others in the field; or (x) commercial successes in the performing arts. Because petitions for extraordinary ability workers are often challenged by the U.S. CIS as not satisfying the “sustained acclaim necessary to qualify,” the Extraordinary Ability Alien must delve deeply into their historical achievements and backgrounds before submitting a petition under this category. Recent Administrative Appeals Unit (AAU) decisions seem to indicate that an Extraordinary Ability Alien must distinguish himself in such a way as to significantly setting himself above from others in the field at the national or international level.

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