Established in 1980, with Over 30 Years of PROVEN Success in All Phases of U.S. Immigration law.

SUCCESSFUL AND TALENTED WORKERS

If You Are A Highly Educated Professional, A Highly Talented Artist Or A Highly Successful Business Person You May Have Immigration Options You Have not Considered.

Any US employer and every foreign worker who has tried to navigate the US immigration laws knows the frustration of government regulation. Long delays, incomprehensible rules and cumbersome procedures have conspired to prevent the most educated, talented and successful people from joining and contributing to the US economy. For professionals from India and China, obtaining residency can be even more frustrating. We may have some solutions.

Here we will discuss the ways to manage, and in many cases, avoid these long waiting periods for individuals seeking either nonimmigrant status as temporary workers or a green card as a permanent resident. Information on the more traditional methods of obtaining employment based immigration status (including a labor certification) is discussed elsewhere.

For many years, immigration attorneys attempted to navigate through this beurocratic swamp by suggesting that employers hire these individuals in nonimmigrant- temporary- status while awaiting the issuance of these precious permanent visas. Now however, even this avenue is blocked for many workers. The most logical visa for these professionals would generally be an H-1B which is set aside for applicants with a bachelors or other advanced degree. But the law limits the number of new H1B visas issued each year and when the number of applicants exceeds the member of available visas (as it has for most years) the result is a computer generated lottery system that rejects most applicants.

All of the following scenarios will result in a green card without the necessity of a labor certification and most do not require a long processing time, even for citizens of India and China. (The longer delays for citizens of India and China is because the immigration laws limit the number of green cards issued to citizen from any one country and the employment based applicants from India and China are far greater than other countries.)

Successful Business Executives and Entrepreneurs

Many individuals who have achieved unusual business success have been rewarded with impressive incomes that measure into the hundreds of thousands, and in some cases into the millions of dollars. For some strange reason, these individuals (and their attorneys) assume they will need a job offer and a labor certification or an investment of $500,000 or more to qualify for a green card. This is not always the case.

We recently represented a Canadian businessman who had made an excellent income- as high as $600,000 a year as a computer engineer. He had been instrumental in developing several very successful internet startup companies and had acquired a net worth of slightly over a million dollars. Other immigration attorneys had advised him to invest $500,000 in a Regional Center as part of an Entrepreneur Visa application (Employment Based 5th Preference- EB5.) That process, in addition to requiring the applicant to put a huge sum of money at risk (and costing tens of thousands of dollars in legal fees and processing fees.) We were able to apply for him as a businessman of extraordinary ability (Employment Based First Preference of EB1). The application included proof of his high salary, letters of support from leading internet entrepreneurs and internet articles detailing the success of the startup companies where he worked. His case was approved in a few months without risking his life savings or paying up to $50,000 in legal and filing fees. Click here.

Multinational Executives

Perhaps the most viable option for high level management personnel is through the multinational executive or manager. (EB1) The requirements for this type of case are highly technical and are strictly imposed by USCIS. e requirements are strictly imposed, but for the business person who qualifies, or potentially qualifies, the rewards can be painless and prompt.

For example, an international company in the US hires an engineer from India to serve as project manager. This person has a Master’s Degree from a US university and currently has Optional Practical Training (OPT) that allows her to work in the US. They cannot get her an H1B (she is not picked in the H1B lottery) and a labor certification and Second Preference petition will take nine years. Best course of action? How about transferring the individual to an overseas office for one year, allow her to gain experience as a manger and bring her back with a green card a year later?

Outstanding Professors and Researchers

An outstanding professor or researcher must have three years’ experience in teaching or research in an academic area and must be seeking a tenured “or comparable position” to conduct research with a private employer. Defining “outstanding” is often a numbers game- how many articles have you published? what is the impact rating of the journal in which your article was published? how many times have your publications been cited by others? Research conducted while working on an advanced degree can be considered. Many individuals with doctorates can qualify as outstanding professors or researchers if offered a position with a private company if the company has a Research and Development department with at least 3 full time researchers.

Athletes, Fine Artists

US immigration law rewards successful athletes, entertainers and fine artists with a fast track to a work visa and a green card. Success must result in a person of either extraordinary or exceptional ability. (An EB-1 or Employment Based First preference is for extraordinary ability and an EB-2 or Employment Based Second Preference is for exceptional ability. The extraordinary ability is a higher standard but unless you are from India or China (where the visa numbers are backlogged many years) there is no advantage to qualifying in the more stringent EB-1. (Unless your Justin Bieber and need the satisfaction.) This is because both categories are current and therefore without backlogs.

When we take on these clients, we look for a portfolio that should include several news articles written about the individual and an impressive list of successes. It’s pretty hard to claim you have national or international acclaim when nobody knows or cares who you are. Still, it’s not necessary to win an Academy Award, the Australian Open tennis championship, or have your paintings auctioned at Sotheby.

We represented a Brazilian artist who had achieved considerable success in his native country. His art work sold for several thousand dollars, he had several exhibitions in private galleries, had won some local awards, and had articles written about him in the local media. He came to the US on an O-1 visa and experienced similar success on Long Island, including a positive review of his work in a short article in the New York Times. Although his work has not (yet) been displayed at the New York Metropolitan Museum of Art, he qualified for and EB1.

National Interest Waivers

Avoiding the necessity of a labor certification is often the cherished goal of employers and employees alike. The National Interest Waiver (or NIW to us immigration geeks) is a means by which an individual with an advanced degree can avoid the necessity of a labor certification if he or she can convince USCIS that their past work justifies the determination that “the national interest would be adversely affected is a labor certification were required” Having exceptional ability is not by itself sufficient to grant the waiver. USCIS is generally looking for proof that the applicant’s past work has had an impact on the development of their field of expertise. Again, like the outstanding professor and researcher, this is often a numbers game: how many articles have you published, what is the impact rating of the journal in which your article was published, how many times have your publications been cited by others, etc. A letter of support from an unbiased expert in the field is also of help. (As opposed to your former mentor.) For this reason, the great bulk of NIW are issued to researchers.

A few things to note about NIWs

  1. This falls into the Employment Based Second Preference Category which, as of this writing was not backlogged for any country except China (5 years) and India (9 years.)
  2. In our experience, unless the applicant has a history of high level academic publications, the NIW is rarely worth the effort. A labor certification, although time consuming, cumbersome and often aggravating, can often be accomplished in less time than it takes to obtain the NIW and most highly educated and highly skilled workers have little difficulty in obtaining the certification.

We have represented several university employed researchers who have gained permanent residence through a National Interest Waiver and we always begin by requesting a Résumé with a list of publications and citations.