Employment and Exceptional Ability Based Immigrant, Non-immigrant Visas We advise clients in one of several categories listed here:
|Immigration Visas||Non-Immigration Visas|
|EB2 – (national interest waiver)
EB1-A (extraordinary ability)
EB1-B (outstanding researcher)
EB1-C (multinational manager or executive)
PERM (labor certification):
I – 485 (green card application):
|H1-B- Specialty Occupation Worker
L1-(Intra company transferee)
O1/ O2- Extraordinary Ability
EB2 – (NATIONAL INTEREST WAIVER)
A brief synopsis of what is applicable in National Interest Waiver case follows.It has three prongs to qualify an application for.
Prong 1 – You must show that you plan on working in the United States in an area of substantial intrinsic merit.
“USCIS will look at your documents to determine whether the importance of your proposed work is readily apparent”
- A letter from you and/or your company describing the work and its importance
- Articles or other published media discussing the work and its importance
- Letters from experts in the field attesting to your work and its importance
- Testimonial letters from experts along with expert’s credentials, such as a C.V.
Few Examples of People meeting the first prong would include a physician/ scientist/ medical or post-doctoral researcher/ engineer/ environmentalist, geologist, web developer or an entrepreneur. The work areas may include cancer therapies, science of reducing pollution of air, water, earth, technologies that can improve fuel efficiencies, production efficiencies, worker safety etc.
Prong 2- You must show that the proposed impact of your work is national in scope.
“USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.”
“Published articles or media reports
- Copies of contracts, agreements, or licenses showing the scope and impact
- Letters from current and former employers linking your work to national importance.
- Testimonial letters from experts along with expert’s credentials, such as a C.V.
Few Examples of People meeting the second prong would include the same people shown in Prong 1 if they meet the caveat of being of national importance.
Prong 3- You must show waiving the labor certification requirement would benefit the national interests of the United States.
This is the most difficult of the three prongs.
“USCIS says the purpose of the labor certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected.”
- Copies of published articles that cite or otherwise recognize your achievements
- Copies of grants or other funding you received listing the amount and terms of the grants, as well as the principal and co-investigators
- Documents showing how your work is being implemented by others, for example:
- Contracts with companies using your or your company’s products
- Documents showing licensed technology that you and/or your company invented or co-invented, and how that licensed technology is being used by others
- Patents or licenses awarded to you and/or your company with documents showing how they are being used and why they are significant to your field
How our law firm can help?
NIW visa process is an evidence-based process. Due to our attorney’s diversified experience in technical, scientific, engineering and entrepreneurial areas, we can help you prepare documents that meet the evidence required.
Your approach must be to ensure that all together, the petition, letters of recommendation, and supporting evidence will prove that the alien is qualified for a National Interest Waiver. This is the goal at our law firm.
EB1-A (extraordinary ability)
“USCIS says: You must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Your achievements must be recognized in your field through extensive documentation. No offer of employment is required.”
3 out of 10 criteria below or a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal). The ten criteria are:
1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
2. Evidence of your membership in associations in the field which demand outstanding achievement of their members
3. Evidence of published material about you in professional or major trade publications or other major media
4. Evidence that you have been asked to judge the work of others, either individually or on a panel
5. Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
6. Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
7. Evidence that your work has been displayed at artistic exhibitions or showcases
8. Evidence of your performance of a leading or critical role in distinguished organizations
9. Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
10. Evidence of your commercial successes in the performing arts
EB1-A visa process is an evidence-based process. Due to our attorney’s diversified experience in technical, scientific, engineering and entrepreneurial areas, we can help you prepare documents that meet the evidence required.
EB1-B (outstanding professors and researchers)
“USCIS says:You must demonstrate international recognition for your outstanding achievements in a particular academic field. You must have at least 3 years’ experience in teaching or research in that academic area. You must be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.”
Documentation of at least two out of 6 criteria listed belowand an offer of employment from the prospective U.S. employer.
The six criteria are
1. Evidence of receipt of major prizes or awards for outstanding achievement
2. Evidence of membership in associations that require their members to demonstrate outstanding achievement
3. Evidence of published material in professional publications written by others about the alien’s work in the academic field
4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
5. Evidence of original scientific or scholarly research contributions in the field
6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
EB1-B visa process is an evidence-based process. Due to our attorney’s diversified experience in technical, scientific, engineering and entrepreneurial areas, we can help you prepare documents that meet the evidence required.
EB1-C (MULTINATIONAL MANAGER OR EXECUTIVE)
“USCIS says: You must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer”
Your petitioning employer must be a U.S. employer. Your employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed you abroad.
EB1C visa process is an evidence-based process. Due to our attorney’s diversified experience in technical, scientific, engineering and entrepreneurial areas, we can help you prepare documents that meet the evidence required.
PERM (LABOR CERTIFICATION)
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The PERM process qualifying criteria are:
1. There must be a bona fide, full-time permanent job opening available to U.S. workers.
2. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker’s qualifications. In addition, the employer shall document that the job opportunity is described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
3. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
The usual steps of filing are as follows:
1. Application. The employer must complete an Application for Permanent Employment Certification, ETA Form 9089. A completed application will describe in detail the job duties, educational requirements, training, experience, and other special skills the employee must possess to perform the work, and outline the foreign worker’s qualifications.
2. Signature requirement. Applications submitted by mail must contain the original signature of the employer, foreign worker, and preparer, if applicable, when they are received by the NPC. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, foreign worker, and preparer, if applicable, in order to be valid.
3. Prevailing wage. Prior to filing ETA Form 9089, the employer must request and obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC). The employer is required to include on the ETA Form 9089 the NPWC provided information: the prevailing wage, the prevailing wage tracking number, the SOC (O*NET /OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
4. Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving Schedule A occupations and sheepherders filed under 20 CFR §656.16) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
5. When filing under 20 CFR §656.17, the employer must recruit using the standards for professional occupations set forth in 20 CFR §656.17(e)(1) if the occupation involved is on the list of occupations published in Appendix A to the preamble of the final PERM regulation. The occupations listed have been deemed to be professional occupations, as they normally require a bachelor’s or higher degree. For all other occupations not normally requiring a bachelor’s or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR §656.17(e)(2). Employers are not prohibited from conducting more recruitment than is required by the regulations.
6. The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity, however, if requested by the Certifying Officer, the employer must submit the resumes.
7. Audits/requests for information. Supporting documentation may not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it.
8. Retention of records. The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the NPWC prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
PERM visa process requires a thorough knowledge of market availability of skills, how to show that the skill or technologist being sponsored is not available and current labor market. Due to our attorney’s diversified experience in technical, scientific, engineering and entrepreneurial areas, we can help you prepare documents that meet the required criteria.
H1-B- SPECIALTY OCCUPATION WORKER
USCIS says: “This visa category applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.
1. The job must meet one of the following criteria to qualify as a specialty occupation:
2. Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
3. The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
4. The employer normally requires a degree or its equivalent for the position
5. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
1. Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
2. Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
3. Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
Steps in the Process of applying for H1-B.
Step 1: Employer Submits LCA to DOL for certification.
The employer must apply for and receive DOL certification of an LCA.
This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:
1. The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
2. The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
Step 2: Employer Submits Completed Form I-129 to USCIS.
The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center. Please see our I-129 Direct Filing Chart page. The DOL-certified LCA must be submitted with the Form I-129 (only for specialty occupation and fashion models). See the instructions to the Form I-129 for additional filing requirements.
Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission.
Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification
This process is a very intricate and requires close understanding of science faculties. Due to our attorney’s diversified experience in technical, scientific, engineering and entrepreneurial areas, we can help you prepare documents that meet the evidence required. See our partial fee protection for others.
L1-(INTRA COMPANY TRANSFEREE)
There are several criteria to be satisfied for L1 application.
Evidence No. 1:
The petitioning U.S. entity must have a qualifying relationship with your entity abroad.
How to demonstrate the qualifying relationship?
Some of the evidence you may submit to show that your new U.S. business has the requisite corporate relationship to your overseas employer includes:
1. Articles of incorporation showing common ownership of the U.S. and foreign entities
2. Business licenses or other documents showing common ownership of the U.S. entity
3. Annual reports describing the corporate structure
4. Contracts or other documents detailing the affiliate relationship
5. Corporate filings in the United States or abroad describing the corporate relationship
6. Any other evidence demonstrating ownership and control over the U.S. and foreign entities (i.e., stock purchase agreements, voting rights agreements, capitalization table, term sheet)
1) If you are filing as an affiliate, provide:
1. A detailed list of the owners of the foreign and U.S. companies, including the percentage of ownership, along with supporting documentation.
2. An affiliate is defined as one of two subsidiaries owned and controlled by the same parent or individual, or
3. The same group of individuals, each owning and controlling the same share or proportion of each entity.
2) If you are filing as a subsidiary, provide a detailed list of the owners of the foreign and U.S. companies, including the percentage of ownership, along with supporting documentation. A subsidiary is an entity of which a parent:
1. Owns, directly or indirectly, more than half the entity and controls the entity, or
2. Owns, directly or indirectly, half the entity and controls the entity, or
3. Owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity, or
4. Owns, directly or indirectly, less than half of the entity, but in fact controls the entity
3) If you are purchasing an existing business, provide a copy of your stock purchase agreement and/or any other relevant documentation.
How do I demonstrate that I have worked the required amount of time abroad?
Some of the evidence you may submit to document your overseas employment for 1 out of the last 3 years includes:
•Tax returns that show employment
•Evidence of work product
How do I show that my overseas employment was in a qualifying capacity?
Some of the evidence you may submit to demonstrate that your overseas employment was in a managerial, executive or specialized knowledge capacity includes: •Organization charts showing your position
•Patents or other evidence of the company’s technology, products or services that are based on your work
•Loans/financing on behalf of the company
•Organizational job descriptions for your position and those positions that reported above and/or below you, if applicable
•Resume describing your job accomplishments
Evidence No. 2:
Sufficient physical space must be secured for a new office.
How do I prove that the new U.S. office has sufficient space to do business?
When filing for the purpose of opening a new office in the United States, some of the evidence you may submit to demonstrate sufficient physical space for the new U.S. office to do business includes:
•Signed lease agreement
•Mortgages or other proof of real estate purchase
•Business plan, marketing materials, or other descriptions of the business connecting the activity of the business with the space acquired
A new office must be active and operating within one year after the L-1’s admission to the United States if requesting an extension of stay.
The “new office” L-1 visa is meant to facilitate a “ramp up” period for a new U.S. office of a foreign entity. This period is limited to one year. After that time, an extension of the L-1 visa is available if the new office meets this requirement. What makes an office active and operating will differ depending on the nature of the business. Typically it will involve factors such as hiring additional employees, fulfillment of contract orders, having a revenue stream, or holding inventory, if applicable.
Evidence No. 4:
After 1 year, the new office must support a managerial or executive position if you are requesting an extension of stay in the L-1A classification.
While a new office may be opened on an L-1 visa by someone working within your organization in a managerial, executive or specialized-knowledge capacity, after one year the office must be sufficiently active to support a manager or executive. During the first year ramp up, a manager or executive may be required, as a practical matter, to engage in many “hands-on” tasks that go beyond inherently managerial or executive tasks. After the first year, however, the manager or executive will be required to focus primarily on managerial or executive tasks in order to obtain an extension of the L-1 visa.
After one year, how do I demonstrate that the new office is fully functioning and that it will support my role as a manger or executive?
Some of the evidence you may submit to demonstrate that the new office is fully functioning includes:
•Purchase orders, contracts or other evidence of commercial activity
•Payroll records for employees hired
•Financial reporting documents showing monthly income
•Continued venture capital or other third party investment contribution based on achieved milestones
•Media coverage of the business
•Position descriptions providing the roles and responsibilities of all current employees, or other evidence which clearly demonstrates how the manager or executive is relieved of non-qualifying duties
L1 visa process is an evidence based system requiring understanding of finance, organization structures. Due to our attorney’s diversified experience in technical, scientific, engineering and entrepreneurial areas, we can help you prepare documents that meet the required criteria.
The new U.S. office must have a corporate relationship with your foreign entity abroad where you have been employed as a manager, executive, or worker with specialized knowledge. This means that the new U.S. office must be a parent, affiliate, subsidiary or branch of the foreign entity, and that both the U.S. office and the foreign entity must continue to share common ownership and control.
O Visa- O-1A (extraordinary ability in sciences), O-1B (extraordinary ability in arts or athletics)
USCIS says: “The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.”
1. General – To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.
2. Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.
3. Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.
4. To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.
Evidentiary Criteria for O-1A
Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:
1. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
2. Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
3. Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
4. Original scientific, scholarly, or business-related contributions of major significance in the field
5. Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
6. A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
7. Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
8. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
9. If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish eligibility.
Evidentiary Criteria for O-1B
Evidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least (3) three of the following:
1. Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
2. Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
3. Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
4. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
5. Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
6. A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence
7. If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).