Extraordinary Ability (EB-1A)
 

To qualify as a “person of extraordinary ability” and obtain an immigrant visa (green card), a foreign born person must meet requirements similar to those for the O-1 visa. Or, in other words, he must prove that he is “one of the few who has risen to the top of his field,” either nationally or internationally. As a result, he must be the recipient of either (i) a major, internationally recognized award or (ii) at least three of the following distinctions:

• The physician has received nationally or internationally recognized prizes or awards for excellence in his area of expertise;

• The physician belongs to professional associations which require outstanding achievements of their members, as judged by recognized national or international experts;

• The physician has been the subject of articles in major media or trade publications relating to his work;

• The physician has participated on a panel or as a judge of the work of others in his area of practice;

• The physician has made original scientific or scholarly contributions of major significance;

• The physician has written scholarly articles that have been published in professional journals or other major media;

• The physician has worked in a critical capacity for an organization with a distinguished reputation in the field of medicine; or

• The physician has commanded a high salary or other compensation.

 

The chief advantage of qualifying as a person of extraordinary ability is that the applicant can “self-sponsor.” In other words, the physician does not need an employer sponsor. The applicant need only show that he intends to continue work in the field of his extraordinary ability. Evidence of this intent can include an employment contract, an offer of employment, or simply an expressed intent to engage in self-employment.

 

Caveat for Physicians:most physicians do not qualify as persons of extraordinary ability. To do so, a physician must produce extensive documentation and the support of medical experts to show that the physician has “risen to the top of the field.”

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Outstanding Researcher or Professor (EB-1B)
 

To qualify for the immigrant visa (green card) as an “outstanding professor or researcher,” a foreign born person must have at least three years of teaching or research experience. Furthermore, she must enter the U.S. to work in a tenure-track teaching or research position at an institution of higher learning or for a public or private research lab. In addition, she must show international acclaim as a researcher or professor by accomplishing at least two of the following achievements:
 

• Receipt of major prizes or awards for outstanding achievement in her field of expertise;

• Admission into a professional association that requires outstanding achievements of its members;

• The subject of an article in a professional publication detailing her work in the field of expertise;

• Participation as the judge of the work of others in the field;

• Original scientific or scholarly research contributions to the field; or

• Authorship of scholarly books or articles in the field of expertise.

 

Caveat for Physicians: EB-1 status as outstanding researcher or professor is not available to most foreign born physicians. Even more, for those physicians who are researchers or professors, it can be more difficult to qualify as an outstanding professor or researcher than it is to qualify as a person of extraordinary ability. This is because outstanding professors and researchers must have achieved international acclaim (in contrast to the national acclaim required by the extraordinary ability classification). Finally, unlike the extraordinary ability track, an outstanding professor or researcher must have an employer sponsor who will petition for the professor or researcher.

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Multinational Executives or Managers (EB-1C)                                                                               

 

In order to qualify as a multinational executive or manager under this preference, the applicant, during the three years preceding the application, must have been employed for at least one year by the same multinational firm or other business entity (affiliate, parent, subsidiary, or branch of the U.S. employer) that employs them in the United States. Furthermore, the applicant must seek to continue rendering services to the same employer in a managerial or executive capacity.

 

The law defines a manager as someone who:

1. Manages a corporation, department, subdivision, or function.

2. Supervises and controls the work of other supervisory, professional, or managerial employees, or else manage essential functions.

3. Has the authority to make personal decisions as to hiring and termination, or else function at a senior level, or

4. Exercises discretion over the day to day operations of the activity or function for which he or she has authority.

 

An applicant is qualified as an executive if he/she satisfies the following requirements:

1. The person must manage an organization, major component, or function

2. The person has the authority to establish goals and policies

3. The person has wide latitude and discretionary decision-making authority or

4. The person receives only general supervision from higher executives, board of directors, or stockholders

 

The definition also includes executives who perform tasks necessary to produce the product or provide the service offered by the organization if the executive is also a professional, such as an engineer or architect.

 

In EB-1C category, the employer directly files for Form I-140, petition for immigrant worker. As the priority date is almost always current in EB-1 category, the employer can concurrently file for Form I-485, Adjustment of Status. However, if the alien is outside the U.S., he/she can get Immigrant Visa once I-140 is approved.

 

Executive Managers/Executives Eligibility requirements for the green card application in EB-1C category is so like the eligibility requirements to qualify in L-1A visa that it appears that that the EB-1C category for employment based green card was created especially for L-1A visa holders. However, it is not required that the applicant be an L-1A visa in order to qualify for EB-1C category.

 

The major advantage of applying in EB-1C category is that the applicant doesn’t have to go through the expensive and time-consuming labor certification process.

 

Labor Certification / PERM (EB-2 and EB-3)

 

For the EB-2 and EB-3 categories, a labor certification and employer sponsorship is required. Again, the only exception is the previously discussed national interest waiver for the EB-2 category. Labor certification is the process whereby the U.S. Department of Labor (DOL) certifies that (1) there is a shortage of minimally qualified U.S. workers for the position offered and (2) the offered employment does not adversely affect the wages and working conditions of U.S. workers. The basic requirements for labor certification are:
 

• Full-time employment – The employer must hire the foreign worker as a full-time employee, not part-time.

• Permanent job – The employer must offer a permanent position.

• Reasonable job requirements – The minimum educational and experience requirements that the employer specifies for the position must be those customarily required for the occupation. These requirements cannot be tailored to the background of the employee for whom the application is filed. In addition, the employer must establish that the educational and experience requirements are not “unduly restrictive.”

• Salary must meet minimum prevailing wage guidelines – Salary offered must be the higher of prevailing wage or actual wage. Like the H-1B requirement, the employer must pay at least the “prevailing” wage for the occupation in the area of intended employment, which is essentially the average wage that other employers pay for similarly qualified workers. The Department of Labor (DOL) determines the prevailing wage. In addition, the employer must pay at least the “actual” wage which it normally pays to its own employees who are similarly qualified.

 

The Application Process
 

Obtaining an employment-based visa can be a long and arduous process that can take years, even for physicians. For most EB-2 physicians, the first step is for the employer to file a labor certification with the Department of Labor (DOL). The DOL in Atlanta generally decides an application within 9 to 12 months of application, but sometimes the process is longer.

 

There are stringent recruitment procedures that the employer must follow before an application can be filed and approved. For a professional position like a physician, the employer must engage in extensive recruitment, including two Sunday newspaper advertisements, placement of a job order with the State Work Agency (SWA_, paper and/or electronic posting on site, and three other forms of recruitment that are included on a list of ten recruitment types by the Department of Labor. These recruitment efforts can be conducted no later than 180 days before filing the labor certification application.

 

Optional Special Recruitment (“special handling”)labor certification. There are several advantages to special handling.
 

• First, the recruitment requirement is considerably less stringent. Only one advertisement for the position run in a national professional journal and an onsite job posting are mandated.

• Second, the application for labor certification can be filed up to 18 months after the physician is appointed to the position. And, most importantly, the DOL will not reject the labor certification even if qualified U.S. citizen or permanent resident physicians responded to the recruitment, so long as the employer can show that the alien physician was the best qualified applicant.

 

PERM applications, including special handling applications, can be filed electronically or by mail using form ETA 9089. If electronically filed, the employer must obtain a PERM account from the Department of Labor before the application can be filed. Once the labor certification has been approved, then the second step is for the employer sponsor to file a Petition for Immigrant Worker, Form I-140. The final step in the green card process, the filing of the I-485 application, may be take place if there is a sufficient number of immigrant visas available and the I-140 petition has been filed or approved. Physicians who will teach as well as perform clinical and teaching duties and who are employed by universities may qualify for special handling.

 

Caveat for Physicians: Physicians who held J-1 status and received a government-sponsored waiver of the two-year foreign residence requirement must complete the entire three years (from the day employment starts) of required medical service before they can apply for adjustment of status or consular processing.

 

For example, Dr. Lopez began his J-1 waiver three-year service on January 1, 2019. His employer immediately started the labor certification process to sponsor him for a green card and obtained an approved I-140 on August 30, 2019. Because the J-1 waiver three year obligation, Dr. Lopez cannot apply for adjustment of status or consular processing until January 1, 2022 – end of the three-year service requirement.

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The only exception to this rule is for physicians who apply for a National Interest Waiver for physicians. In this case, the physician may file the I-140 and the I-485 concurrently, even though he has not completed three years of J-1 waiver service. However, the I-485 will not be approved until the physician has fulfilled his five-year medical service obligation as required by the National Interest Waiver. Nevertheless, the ability to file the I-485 is a real advantage because the physician’s spouse will obtain an employment authorization document (EAD) which will allow him or her to work during the years that the I-485 is processed. For many physicians, this is the only way their spouse can work with authorization.

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National Interest Waiver (EB-2)
 

Under the Immigration and Naturalization Act, the usual process to sponsor an alien for permanent residence requires that the employer offering the alien employment must obtain a labor certification proving that U.S. workers are not available who can fulfill the job requirements.  To waive the labor certification requirement, an employer must show that such waiver would be in the national interest. In addition, the alien must hold an advanced degree (master’s degree or higher) or be considered of “exceptional ability.” 

 

The advantages of applying for the National Interest Waiver (NIW) are:

 

(1) faster processing time than employer-sponsored PERM labor certification

(2) no advertising requirements; and

(3) no employer sponsorship required.

 

NIW categories are: Physician and General.  
 

Physician NIW

To qualify for immigrant visa (green card) through the EB-2 category, the immigrant must hold an advanced degree (master’s degree or equivalent, or higher) and be a member of a profession, or show he or she has exceptional ability in the sciences, arts or business. All physicians qualify as professionals with advanced degrees for this purpose. However, unlike their counterparts who qualify for extraordinary ability EB-1 status, EB-2 physicians must be sponsored by an employer. Furthermore, the employer must obtain a labor certification unless the physician’s work is considered “in the national interest.” Such a physician qualifies for a so-called National Interest Waiver (NIW).

 

The main advantage to the NIW is that it allows the physician to self-sponsor. As a result, the physician may change jobs or even engage in self-employment so long as other conditions are met.
 

Fortunately, Congress has passed special rules regarding National Interest Waivers for physicians who work in VA hospitals or in medically underserved areas. These physicians may obtain permanent residence; provided that they perform full-time medical service in a qualifying facility for five years. There is no restriction as to specialty. After the physician has completed all five years of medical service, the DHS will approve the permanent residence application and issue the green card. The DHS will count all medical service that was completed in lawful status, even if the physician does not apply for the national interest waiver until after he has completed medical service. For example, a physician completes two years in a medically underserved area in O-1 status and then applies for the national interest waiver. The physician needs to work only three more years to meet the five-year medical service requirement.

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To support a national interest waiver application, the physician must provide:
 

• A five-year contract of employment or affirm that he will engage in self-employment for the required period of service;

• Evidence that the location of employment is a designated Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA), or in a Veterans Affairs facility;

• A public interest letter from a federal agency or department of health of the state where the employment is located;

• Proof of licensing and passage of USMLE examinations; and

• Proof of waiver of the two-year foreign residency requirement for J-1 physicians, if applicable.

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General NIW

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Individuals seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation.  Applicant must meet at least three of the criteria below.

 

Criteria

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability

• Letters documenting at least 10 years of full-time experience in your occupation

• A license to practice your profession or certification for your profession or occupation

• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability

• Membership in a professional association(s)

• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations

• Other comparable evidence of eligibility is also acceptable.

Family Members - Spouse and children under the age of 21 may be admitted to the United States in immigrant status.

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Investor Permanent Residence (EB-5) - See "Investor Visa"