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What You Need to Know: Extraordinary Ability and NIW Petitions

Extraordinary ability petitions and National Interest Waivers allow the most highly skilled foreign nationals the chance to obtain a green card without sponsorship. In this article, we hope to help you understand basics of the EB-1 “Extraordinary Ability” category and the National Interest Waiver. Contact us directly if you have questions about whether you are eligible for an EB-1 or NIW petition – we are happy to look over your qualifications and help you understand whether you have a viable case for self-petition green card, or provide you visa alternatives.

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Understanding Extraordinary Ability Petitions and National Interest Waivers

The Extraordinary Ability and National Interest Waiver petitions are different from other green card processes because they do not require a job or job offer in the U.S. for a successful petition. These cases are also for people who have a high level of expertise in their fields. An Extraordinary Ability petition can be appropriate for anyone who has reached the top of their area of specialty. That can include business, arts, athletics, and many different fields in science, engineering, and medicine. For National Interest Waiver petition, the proposed endeavor must have substantial merit and national importance. Self petition green cards can also be a productive avenue for entrepreneurs to bring their start-ups or businesses to the United States.

Extraordinary Ability – EB-1 Petitions

Routes to permanent residence based on employment are divided into “preference categories” in the regulatory scheme. The first preference category is the EB-1, which is the category for priority workers.

EB-1A is the category for those who can be considered individuals with “extraordinary ability” in their field, who have risen to the top of their field.  An individual considered to be an individual or of extraordinary ability doesn’t need a job offer in the US at all and can actually “self-petition” for the green card, but they still must demonstrate that they are coming to the U.S. to work in their area of expertise.

The Extraordinary Ability category is for individuals who are publicly recognized for his or her achievements. These achievements can be in almost any field: sports, education, sciences, the arts. The applicant can self-petition, but sometimes a petition submitted by an employer may make it more likely that an EB-1A case  is approved. In order to prove extraordinary ability, the applicant must be able to demonstrate national or international acclaim through showing receipt of an internationally recognized award, such as a Nobel Prize or Academy Award. If that condition cannot be met, the United States Citizenship and Immigration Services (USCIS) has said the burden of proof can be satisfied with evidence from three of the following categories:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that your work has been displayed at artistic exhibitions or showcases
  • Evidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of your commercial successes in the performing arts

The EB-1A has a non-immigrant “twin,” the O-1 visa. The O-1 is for workers of extraordinary ability who want to come to the US to work on a temporary basis. However, unlike the EB-1A, the O-1 requires a petitioner who is either an employer or an agent in the U.S.

National Interest Waivers – EB-2 Preference Category

The evidence required for a National Interest Waiver (NIW) is not quite as straightforward as the EB-1A, primarily because there are no delineated categories of evidence to fill. For an NIW, the immigration service will be looking at three things:

  • Whether or not your proposed work in the U.S. has “substantial merit” and “national importance”. USCIS will consider many things for “substantial merit”, including research that advances scientific knowledge in any given specialty. For “national importance”, USCIS will look at the potential prospective impact of your work.
  • Whether or not you are “well positioned” to advance your proposed endeavor in the U.S. This can include your education, skills and record of success in your field; any progress toward your proposed endeavor like a business plan or funding for your work; and the interest of others in the work that you propose to do.
  • Whether or not it would be beneficial to the U.S. to waive the job offer and labor certification requirements: i.e. is there something specific about your work or proposed endeavor that would make a job offer or labor certification impractical (something helpful for entrepreneurs). Also, even if there are other U.S. workers available, you can attempt to demonstrate that the U.S. would still benefit from you continuing your work in the country.

Self petition green cards require applicants to present a compelling case to USCIS, complete with evidence and documentation of their expertise and accolades in their field. Many times, self petition green cards can be filed concurrently with other work visas and green card applications. Attorneys at FordMurray work with clients across the country on extraordinary ability and national interest waiver petitions. We offer a complimentary consultation to help you make sense of the best strategy for your unique circumstances, and we have a long list of current and former clients who can speak to our acumen. If you need help with your self petition case, or any other business immigration concern, contact us today.

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