Extraordinary Ability and Other Special Options

Information on the topic of immigrant petitions in the employment-based first preference (EB1) and the National Interest Waiver (NIW), employment-based second preference (EB2), categories has been provided for MurthyDotCom and MurthyBulletin readers in a series of articles and Frequently Asked Questions (FAQs). A number of articles about the O-1 nonimmigrant status for Workers of Extraordinary Ability (EA) can also be found on MurthyDotCom. This comparative analysis on these types of petitions, all of which require a high level of achievement, should prove helpful to those individuals searching for less traditional paths toward immigration. This information may prove valuable when evaluating one’s chances for the less common O-1 status and/or the “special category” green card in the EB1/NIW categories, which have stringent requirements and are discretionary.

Nonimmigrant Categories : Choosing O-1 Over H1B

Besides taking into account that both H1B and O-1 are nonimmigrant (i.e. temporary) statuses, one must consider many other factors when determining with which to proceed. Far more individuals qualify for H1B status than for O-1. A successful O-1 petition requires a beneficiary to show “extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions, a demonstrated record of extraordinary achievement.” Thus, there are many who clearly qualify in the H1B category by virtue of having an offer of employment in a specialty occupation in which they have their respective professional degrees, who will not be able to meet these criteria for a more stringent O-1 status.

There are individuals, however, who would qualify for H1B or O-1, as well as some, particularly artists and athletes, who may qualify for O-1 but not for H1B. Also, there are individuals who would otherwise qualify for H1B based upon education and type of employment, but who would not immediately be eligible to obtain H1B status because they previously held J-1 status and remain subject to the two-year home-residency requirement. These people cannot obtain H1B status, but may be eligible for O-1 status.

On a positive note, there is no annual cap on the number of O-1 petitions the USCIS can approve each year and there is no maximum number of years one can stay in O-1 status. Unlike H1B, an O-1 petition does not require the Labor Condition Application (LCA) to be filed with the U.S. Department of Labor (DOL). An O-1 filing, however, requires that one obtain an advisory opinion from a relevant peer group, which may sometimes be difficult to identify. Both H1B and O-1 require an offer of employment and neither H-4 nor O-3 dependents are allowed to work in the U.S.

Proving extraordinary ability for O-1 in the categories other than arts requires either the receipt of a major, internationally recognized prize (such as the Nobel Prize) or at least three of the criteria listed in the law. These criteria are: receipt of nationally / international recognized awards; membership in organizations that require outstanding achievement; published materials about the foreign national in professional / major trade publications; judging the work of others; original scientific / scholarly work of major significance; authorship of scholarly work; employment at an organization with a distinguished reputation; receipt of a high salary in relation to others in the field.

O-1 may be Beneficial for an EA Case

The beneficiary has to meet a number of criteria in order to be eligible for the O-1 status, most of which mirror those for the EB1, EA category. Generally, the O-1 status holder is thought to have a better chance of qualifying for this type of immigrant petition than a nonimmigrant holding a status such as H, J, or F. However, there certainly are many people who hold statuses other than O-1 who have received approval in the EA category. The legal standards for EA overlap with O-1 requirements, explained above. However, because the additional eligibility criteria for the EA category are somewhat higher, not all O-1 holders may qualify for the EA category. Additionally, simply having evidence in three of the listed categories does not assure approval of either the O-1 or the EA. These are minimum requirements to be considered for approval. Successful candidates generally have extensive documentation within at least three of the listed categories of required evidence.

Deciding between EA and NIW

Both EA and NIW petitions are exempt from the labor certification and job offer requirements. Therefore, they can be self-sponsored by the foreign national. Both of these categories require a showing of significant success in one’s field. The eligibility for NIW, however, has a lower threshold as the individual petitioning in this category does not need to show that s/he “is one of that very small percentage who has risen to the very top of the filed of endeavor,” as is the case with EA petitions. In contrast, the petitioner in an NIW case needs to show that the requirement of a job offer can be waived if the proposed employment is determined to be in the “national interest.” This petitioner still has to show a high degree of achievement in addition to the “national interest” aspect of his or her field. It is not sufficient to show that s/he works in and has expertise in an area that is in the national interest. The waiver given to the NIW petitioner is a waiver of the requirement for a labor certification, if doing so is in the national interest. In order to meet this criterion, the foreign national must establish that his/her unique abilities, as demonstrated by a pattern of notable past achievements, would provide the U.S. with a benefit that outweighs the significant national interest in protecting U.S. workers through the labor certification requirement.

One needs to carefully evaluate his or her qualifications before deciding whether EA and/or NIW is appropriate. If one might be eligible for both, it is possible to file both. In addition, for individuals from certain countries who may have to wait several years until their EB2 priority dates becomes current in order to file applications for adjustment of status (i.e. “green card”), the decision of category may be a critical component of this consideration.

Deciding between OPR and EA

The Outstanding Professor / Researcher (OPR) also presents a possible “special category” within EB1. While EA is exempt from employer sponsorship, an OPR petition is conditioned upon a job offer and employer sponsorship. It does not require the filing of a labor certification application (PERM) with the US Department of Labor, however. Thus, like the EA and NIW cases, it starts with the filing of an I-140 (Employer’s Petition for Foreign National Worker).

One hurdle faced by those considering the OPR category is that it requires at least three years of experience in teaching or research in the field. It also requires the offer of a permanent position (tenure-track or tenured or a comparable research position), and an offer of employment at a university or a private employer that employs at least three researchers full time and that has achieved documented accomplishments in an academic field. The personal qualifications that the beneficiary must document may be somewhat lower for the OPR than for the EA category, but are still high. It requires demonstrating that international recognition as outstanding in a specific academic area. If one has a job offer and intends to stay in the job for some time, filing in the OPR category may be a better option than filing an EA petition.

Conclusion

Deciding which nonimmigrant and/or immigrant case to pursue often involves careful consideration of legal requirements as applied to an individual’s circumstances. As this decision may significantly impact one’s life, it is always advisable to consult a knowledgeable attorney, experienced in these aspects of U.S. immigration law. As the demand for H1B visas exceeds the current limit, and as the labor certification process becomes more and more stringent, more and more individuals are considering alternative ways to legally live and work in the United States. Depending upon one’s particular circumstances, these options may include filing a nonimmigrant or an immigrant petition in a category that requires a high degree of achievements and qualifications.

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