Corporate and STEM Extraordinary Ability Immigration

Part of creating a successful enterprise is building a team that can fuel your company’s growth, through leadership, innovation and vision; traits that make a leader in your field transcend normal boundaries. Luckily, federal immigration law provides avenues to recruit people that possess these unmatched credentials and insight to lead your organization.

The United States Citizenship and Immigration Services (USCIS) provides immigrant and nonimmigrant visa options for individuals with credentials, innovations, and insights beyond those normally encountered in the field. A few of the Immigrant options, such as the EB-1A and the National Interest Waiver categories, can either be sponsored by you, the employer, or by the foreign national as an individual and leads the foreign national to permanent resident status in the United States. Other immigrant options, such as the EB-1B or the EB-2 Exceptional Ability categories, must be sponsored by you, the employer. Likewise, the nonimmigrant (or temporary) category for individuals of this ilk is the O-1 Extraordinary Ability Visa, which requires an employer as the sponsor. These visa categories are viable options for C-Suite executives and managers, lead researchers, product developers, researchers, or any other employee who is vital to your business that has a proven record of outstanding achievement in their field.

First Preference Employment-Based “Green Cards” (EB-1)

We provide support for employers and individuals who are navigating the EB-1 green card process. The EB-1 category (Employment-Based First Preference) has three subcategories, all of which can be generally applied in a corporate context.

  • The EB-1A category is a permanent residence status granted to those who are highly accomplished in their field. An applicant can demonstrate their extraordinary ability in one of two ways: showing receipt of an internationally recognized award (e.g. a Nobel Prize, Academy Award, MacArthur Foundation fellowship, etc.), or by showing evidence in at least three of the several other delineated categories for demonstrating qualifications.
  • The EB-1B category is a permanent residence status granted to outstanding researchers and professors. In addition to showing evidence in two extraordinary ability categories, the petition must be accompanied by a job offer from the prospective employer. Additionally, the beneficiary must have at least three years of experience of teaching or research in the field they will be entering, and must continue the type of work in their new position.
  • The EB-1C category is a permanent residence status granted to a multinational manager or executive who has been employed in a qualifying capacity outside of the United States for at least one year within the three years preceding the petition, and will be employed in a managerial or executive capacity by the sponsoring entity. The petitioning employer must be a U.S. employer.

Obtaining the right legal counsel is critical for the stringent requirements of the EB-1 petition. FordMurray offers complimentary evaluations and consultations of EB-1 cases, and we can help identify the strongest category for your petition, gather compelling evidence, or find viable alternatives.

Second Preference Employment-Based “Green Cards” (EB-2)

Employment-Based Second Preference (EB-2) is broken into three subcategories and are all generally available to corporate employers in the United States with some providing the added benefit of avoiding a stringent test of the labor market, i.e., Labor Certification.

  • “Exceptional ability” – Foreign Nationals of “Exceptional Ability” in the Sciences, Arts or Business (above that ordinarily encountered in the field):
    • Individual will substantially benefit the U.S. economy, cultural, or educational interests
    • Requires the filing of a labor certification with USCIS (not the DOL)
    • 3 of 6 Regulatory criteria evidencing this exceptional ability
  • “Advanced-degree professional” – advanced degree or its equivalent (BA plus at least five years of progressive experience after receiving the BA in the specialty) – DOES require Labor Certification
  • National Interest Waiver (discussed below) – does NOT require Labor Certification and the foreign national can self-petition in this category

Petitioners in the National Interest Waiver category must prove the following:

  • Whether the applicant’s proposed work in the U.S. has “substantial merit” and “national importance”;
  • Whether the applicant is “well positioned” to advance their proposed work, and
  • On balance, waiving the job offer and labor certification requirements would be beneficial to the U.S.

The O-1 Nonimmigrant Status

The O-1 nonimmigrant status is akin to the EB-1A immigrant category for individuals of extraordinary ability. As such, to obtain an O-1 visa, an individual must demonstrate extraordinary ability in the sciences, arts, business, education, or athletics.

The O-1 visa can be a good option for corporate entities for C-suite level managers and executives, product developers, researchers, or team members with specialized and unique knowledge. This visa requires a significant amount of documentation – to be approved, the candidate (through awards, publications, or other evidence) must demonstrate extraordinary accomplishment in their field. The beneficiary’s abilities must be corroborated by a consultation letters, which are essentially detailed letters of recommendation from other respected experts in the specific field.

Additionally, the O-1 can be an excellent option for employers because, unlike the H-1B, it is not subject to a prohibitive cap on the numbers of visas available to potential employees, and is an excellent precursor to an extraordinary ability green card application.

The appropriate application of extraordinary ability visas should be part of every corporation’s immigration strategy. Contact us for a complimentary consultation to speak to an experienced business immigration attorney about how your company can hire the very best team of innovators and leaders.