Immigration without Sponsor

Published on 27 June 2014 Hits: 830

Aliens with 'Extraordinary Ability' and 'National Interest Waiver' While many prominent academic and research positions are now filled by foreign nationals, more and more government-funded agencies and organizations are implementing a 'no-sponsorship' hiring policy. Qualified, even clearly outstanding candidates are turned away. Even if some of these organizations are willing to hire foreign candidates on a temporary basis such as J-1, O-1, or H-1B, they are unwilling to sponsor the foreign researchers for green cards.

In this environment, self-petition, i.e., immigration without sponsor, is not only a choice of convenience but also a choice of necessity. In pursuing immigration without sponsor, gifted and accomplished foreign artists, researchers, and business professionals may consider and utilize two categories: aliens with extraordinary ability ("EB1") and national interest waiver ("NIW"). Persons qualifying for these two categories are granted a waiver of the labor certification, which is a U.S. labor market test. This means no advertisement or DOL application is required, and one can proceed with the I-140 immigrant petition directly with the USCIS.

Furthermore, the applications for adjustment of status for the beneficiary and his/her family, along with applications for employment authorization and travel document, may be filed concurrently with the petition - as long as visa numbers are available for that category and for the applicant's nationality. Evidentiary Requirements Evidentiary documents that are required for both categories are very similar. Generally, the applicant must be prepared to submit some of the following types of documents: documentation of receipt of major award or prize for outstanding achievement in field of expertise; membership in associations in the field that require members to have outstanding achievements; published material written by others about the alien's work; evidence of participation, either individually or on a panel, as the judge of the work of others; evidence of original contributions; evidence of authorship of influential books or articles; evidence of working for outstanding organization; letters of support from outstanding individuals; etc. Instead of simply categorizing evidence in the listed types as above, experience tells me a better approach is to review and present the totality of the circumstances because one accomplishment is usually followed by another or more.

While a lengthy publication list is generally helpful, that is not the only or necessary type of evidence. Some professions, because of the nature of the field and/or due to confidentiality issues, never publish. Their original contributions can be established using alternative evidence. Also, a lack of winning any major award alone should not deter one from considering these options. Having said the above, these two categories are not for everyone either. They are not suitable for everyone who holds a Ph.D.; they are not for those who once won a famous award but are no longer engaged in the same field; they are not for those who just recently began their journey in their field of choice. They are really for those who stand out among their respective peer group and who have and will continue to make contributions to their field because of their talent, passion, and devotion.

EB1 vs. NIW Although these two categories are similar in that they are exempt from filing a labor certification and require extensive achievement and ability, there are some differences to consider. First, they fall under different preference categories. This means when immigrant visa numbers begin to get exhausted, the extraordinary ability (EB1) category, which is a first-preference category, will be the last to get exhausted. The national interest waiver (NIW) category, on the other hand, is second-preferenced.

For applicants who were born in India and China, because the quota for these nations in the second-preference category has been filled, EB1 is the only option that will make an immigrant visa immediately available for them. Second, the focus of the case is different. While both categories have high standards, EB1 is truly focused on 'excellence' whereas NIW gives more weight to whether the alien's endeavor has and will benefit the United States in some of the key areas such as education, health, economy, defense, etc. Thus, younger candidates, who have had less time to accumulate evidence of top distinction but who are engaged in the field which impacts national interest, may find the NIW category a more suitable choice.

From my experience, pursuing one of these categories is a fulfilling experience for both the attorney and the candidate. Attorneys get the pleasure of working with bright and accomplished individuals, and applicants themselves find it a useful exercise of collecting and organizing their voluminous documents and references, thus becoming more prepared for other opportunities. However, one must remember this is also one of the most time-consuming ways to obtain permanent resident status and should only begin after a careful review and discussion with an experienced practitioner and commitment to see it through completion.

Mario Guevara-MartinezJune 27, 2014