Extraordinary Ability

Immigration law permits individuals to self- petition for an immigrant visa if they can show that they possess extraordinary ability in their area of expertise. Employers may also file on behalf of individuals in this category without the need for a labor certification.

Individuals of extraordinary ability are defined by statute as those who can show that they have extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. The regulations indicate that the individual’s level of expertise must be such that he or she is one of the small percentage who has risen to the very top of his or her field of endeavor.

To be successful, it is necessary to either have received a major, internationally-recognized award (e.g. a Nobel Prize) or to provide alternative evidence that satisfies at least three criteria set forth in the regulations:

• Receipt of nationally or internationally recognized prizes or awards for excellence
• Published material about the alien in professional or major trade publications or other major media
• Judging the work of others in the field
• Original contributions of major significance
• Authorship of scholarly articles
• Display of work in the field at artistic exhibitions and showcases
• Performance in a leading or critical role for organizations or establishments with a distinguished reputation
• Commanding a high salary or remuneration for services; or
  Commercial success

Extraordinary Ability petitions fall into the Employment-Based First (EB-1A) Preference Category.

National Interest Waiver

Individuals may self-petition for an immigrant visa if they can show that their admission into the United States without a job offer is in the national interest. Employers may also file on behalf of individuals in this category without the need for a labor certification.

To qualify, these individuals must meet the following three criteria:

Seek employment in an “area of substantial intrinsic merit”;
Proposed benefit of the work must be “national in scope”; and
Demonstrate that the national interest would be adversely affected if a labor certification is required.

The individual also must have at least the equivalent of a U.S. Master’s degree (or a Bachelor’s degree and five years of progressive experience in the relevant specialty), or be able to demonstrate exceptional ability in his/her field.

As illustration, USCIS has in the past favorably considered evidence that the individual’s admission will improve: the national economy; wages and working conditions of U.S. workers; education and training programs for U.S. children and under-qualified workers; healthcare; provision of affordable housing; or the environment in the U.S. and make for more productive use of natural resources.

National Interest Waiver cases fall into the Employment-Based Second (EB-2) Preference Category.

Permanent Residence

I-485 Application to Adjust Status to Permanent Residence

If an individual is in the United States in valid status and an immigrant visa number is currently available, he or she may file Form I-485 concurrently with the I-140 immigrant visa petition. If an immigrant visa number is not available, the individual must wait until the USCIS Adjustment of Status filing chart indicates that the priority date is current for purposes of filing the I-485.

At this stage in the process, the individual’s spouse and/or minor children may also file I-485 applications. A separate I-485 application must be filed for every applicant for permanent residence, based on the primary applicant’s I-140 petition. When the I-485 application is filed, applicants are also eligible to apply for Employment Authorization (EAD) and Advance Parole (AP). An EAD allows for unrestricted work authorization in the United States. AP allows an adjustment of status applicant to travel abroad while his or her application is pending without abandoning the application. It also provides a means for re-entry into the United States. EAD and AP applications are usually concurrently-processed and issued as a single combined document, valid for one to two years, which can be renewed for as long as the I-485 application remains pending.

U.S. permanent resident status is granted upon the approval of the I-485 application.
Consular Processing

If an individual is pursuing permanent residence from outside the United States, or chooses not to Adjust Status via Form I-485 in the United States, he or she may apply for an immigrant visa through consular processing. Consular Processing begins through a selection on the I-140 petition indicating that the individual intends to process through a specific Consulate – typically the Consulate with jurisdiction over the individual’s place of residence, or through a supplemental filing if the decision is made later, and listing any accompanying family members who will also be applying. After the I-140 petition is approved, the National Visa Center is notified to begin the Consular Process by gathering fees, documentation and information. Once an immigrant visa number is available to an applicant (or will be soon), he or she is scheduled for an in-person interview at the designated Consulate, typically with only a few weeks’ notice. The immigrant visa application is generally adjudicated at the interview, or a request for additional information or evidence is made. Following approval of the application, the individual will receive an immigrant visa stamp in his/her passport, and must pay the USCIS Immigrant Fee online and enter the United States within six months of visa issuance. The individual does not become a permanent resident until he or she enters the United States using the immigrant visa.