Employment Immigration and Work Visas

A General Overview

There are several different employment categories for potential immigrants to obtain a US green card. Most of them require showing that there is a shortage of U.S. workers who can do your particular job. This process, called the Application for Labor Certification, or Labor Cert for short (and also called PERM), can be quite time-consuming depending on local conditions. There are, however, five categories that avoid the Labor Cert all together. They are: (1) those who invest between $500,000 and $1 million in a business; (2) individuals who are multinational managers or executives; (3) outstanding professors and researchers; (4) individuals of exceptional ability whose work is in the national interest; and (5) individuals of extraordinary ability.

Of the five categories, the Outstanding Researcher category is the easiest to obtain approval. In this category, you have the responsibility of convincing the government that you have an outstanding international reputation as a researcher or professor and that you have at least three years’ research experience. In addition, your employer must be either a university or a private organization that has at least three full-time research positions. Your employer must be willing to petition the government on your behalf.

To prove that you have an outstanding reputation, the government has provided a list of suggested documents. First, the official list; the government would like to see at least two of the following items:

1. Receipt of major prizes or awards for outstanding achievement;

2. Membership in associations that require outstanding achievements of its members;

3. Published articles written by others about your work;

4. Evidence that you have judged the work of others in your field;

5. Evidence of your original scientific research contribution to your field; or

6. Articles written by you about your research published in journals of international circulation.

Please note that 1-6 above is not an exclusive list. I suggest potential immigrants also prepare and collect the following information to be used in evidence with their petition:.

1. Résumé or curriculum vitae;

2. Copies of your degrees or transcripts showing receipt of your degrees;

3. Copies of published articles written by you (you do not need to be the sole author)

• if the articles are lengthy, just the first page or abstract is sufficient;
• make sure the copied material shows the journal name, date, name of article, and authors of the article;
• if an article has been recently accepted, a letter from the journal to that effect;

4. Copies of the Science Citation Index showing that your articles have been cited by others in your field;

5. Copies of the cards requesting copies of your research. This tends to show both that you have contributed to your field and that the journals had international circulation. (Yes, I know that most people throw them out—but if you have them, save them!);

6. Evidence that you have presented papers or research at international conferences

• copies of the program listing your name and topic;
• letters inviting you to speak;
• list of participants, showing international character of the conference;
• if you do not have any of these, but you did present research, a letter from someone who can confirm this;

7. Any scholarships, fellowships, or awards you received as a student;

8. Any grants that you have received for your research, especially if granted by the United States or a foreign government;

9. If you served on a master’s or doctoral thesis review panel, a letter from someone who can confirm this;

10. If you reviewed articles for publication in a journal, provide evidence of this;

11. Any patent applications or awards based in whole or in part on your research;

12. Letters of reference from others in your field (generic sample letter attached)

• I like to obtain at least three;
• At least one of these letters should be from an individual in a different country; and

13. Anything else that you can think of to show that you are outstanding in your field.

You also need to establish that you have at least three years of research experience. Time in private industry counts, as does research in pursuit of your Master’s or Ph.D. I usually use the reference letters to also establish this element.

The National Interest and Exceptional Ability categories are more difficult to establish, although the documentation presented to government is usually the same type as for the Outstanding Researcher. You must understand, however, that the evidence receives higher scrutiny from the government. One reason for the heightened review is that both the National Interest and Exceptional Ability categories allow you to self-petition. In other words, you do not need an employer to “sponsor” your immigration. Nonetheless, you must convince the government that you are likely to continue to work in your field. Because of recent agency interpretations, the two categories are very similar.

The National Interest and Exceptional Ability categories are not limited to scientists. Artists, athletes, and others can use these categories, although the government guidelines were clearly written with scientists in mind. Attorneys have used these categories successfully with ballroom dancers, comic book artists, body building judges, specialty bicycle manufacturers, and highway safety engineers, to name just a few of the more unusual cases.

To be successful with a National Interest case, you must establish that you are an individual of extraordinary ability (higher than outstanding) and that there is something about you and your abilities that benefit the United States as a whole. In other words, there is something unique about your abilities that will make life better in this country. Although not contained in the statute, agency interpretations say that you must show that your U.S. peers could not perform the same duties and explain why you should be exempted from the Labor Cert process.

The official list from the government on evidence to show your National Interest qualifications include:

1. A degree or academic record showing an education related to the field of expertise;

2. Letters of reference, showing at least 10 years of experience in your field;

3. License to practice in your field;

4. Evidence that you have commanded a high salary or other remuneration for services in your field;

5. Membership in professional associations;

6. Recognition for achievements and significant contributions to the field; or

7. Anything else you can think of to show your abilities in the field.

The government would like to see at least three of the above items, although just giving them three will not guarantee that your case will be granted.

For the Extraordinary Ability category, the government will accept a one-time receipt of a major inter-national award (such as a Nobel Prize) or evidence to show that you are one of the few to have risen to the top of your field. Again, if you have not received such a prize, the government has suggestions for documentation. Again, they would like to see at least three of the following:

1. Receipt of lesser national or international awards;

2. Membership in associations that require outstanding achievements of their members as judged by national or international experts;

3. Published material about you in professional or trade publications or major media;

4. Evidence that you have judged the work of others in your field;

5. Evidence of original scholarly contributions to your field;

6. Evidence of scholarly articles written by you about your field and published in trade journals or other major publications;

7. Evidence that you have performed a lead or critical role for organizations of distinguished reputation;

8. Evidence that you have commanded a high salary or other remuneration for work in your field; and,

9. Anything else that you can think of to show you are one of the few at the top of your field.

If you are interested in applying for any of these categories, please feel free to contact me for professional advice and help.

In my experience, the drafting of recommendation letters in support of your petition plays a key role in the process, and I always assist my clients with the writing and drafting of these important letters. Also, I always include a memorandum of law in support of every petition I submit to the BCIS. Petitions submitted with a legal memorandum and carefully prepared evidence usually avoid government requests for more evidence, and this speeds up the petition's review and its chances for being granted.

Temporary Employment Visas

L-1 Visa

H1-B Visa

O Visa

The L-1visa is used by foreign workers to work for a qualifying affiliate U.S. employer in either a managerial/executive capacity (L-1A) or a specialized knowledge capacity (L-1B).

The L-1 foreign national is called an “intracompany transferee.”

L-1 Visas have no numerical limitation, and the L-1 visa is a good stepping stone for a green card petition down the road.

The basic requirement for H-1B petitions is having a job that is a specialty occupation. This is generally means a job requiring at least a bachelor’s degree in a specific field.

There is also a special category of H1B visas for professionals with a MA Degree or higher.

Educational institutions and some non-profit institutions are exempt from numerical limits.

O-1 visas may be awarded to workers of extraordinary ability..

There is no limit on the duration of an O-1 visa.

No labor certification is necessary.

O-1 visas are underused and are not subject to numerical limitations.

An employer must file the O-1 petition on behalf of the worker.

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