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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Not Just For Rocket Scientists: Green Cards For Aliens of Extraordinary Ability In Business

by Susan Willis McFadden

Albert Einstein would have been eligible. So would Enrico Fermi and Victor Hess. They all would have been eligible for permanent resident status as aliens of extraordinary ability, based upon their receipt of "a major, international recognized award"-in their cases, the Nobel Prize in Physics.[1]

Aliens of extraordinary ability in the sciences, arts, education, business or athletics can qualify for lawful permanent residence in the first employment-based immigrant preference category.[2] The extraordinary ability preference offers many advantages to the qualified applicant, among them the valuable option to self-petition, thereby dispensing with the need to obtain a sponsor.

Although potentially very useful to the world's best and brightest, the preference category for aliens of extraordinary ability is very little used; in Fiscal Year 2003 only 1224 principal applicants obtained lawful permanent residence on this basis.[3] It is our belief that qualified applicants have been discouraged from using the EB-1-1 category due to a mistaken impression that it is available only to the winners of major awards such as the Nobel, or to those persons outstanding in the arts or sciences.

However, "business" is specifically listed as one of the fields of endeavor as to which the EB-1-1 is available, and in fact many of the criteria used to prove extraordinary ability in the more familiar contexts of the arts and sciences can easily be adapted to benefit aliens who seek permanent residence in the United States based upon their success in business.
This article is designed to encourage aspiring permanent residents and their attorneys to consider immigrant petitions based upon extraordinary ability in business.

Legislative and Regulatory Background

The EB-1 immigrant visa for aliens of extraordinary ability (hereinafter "EB-1-1") was created by the Immigration Act of 1990.[4] That Act added a new subsection to the Immigration and Nationality Act[5] and created five immigrant visa preference categories, including employment-based, special immigrants, and employment creation.

The first preference, for priority workers, includes aliens of extraordinary ability, and originally 40,000 visas were set aside for it. That allocation was changed in 1991 to its current level of 28.6% of the worldwide level.[6]

Eligible for treatment as aliens of extraordinary ability[7] are those persons with:

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.[8]

In addition, the alien must demonstrate that (1) he seeks to enter the United States to continue work in the area of extraordinary ability, and (2) his entry will "substantially benefit prospectively the United States."[9]

The legacy Immigration and Naturalization Service regulations on the subject define "extraordinary ability" as "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor."[10]

Making the Case
The first step is to define the relevant field of endeavor. Your client may not be at the very top of all businesspeople world-wide, but could be at the top of all those involved in commercial passenger aviation, or financial journalism, or automobile manufacture. Define the field as narrowly as possible.

If the alien does not have a Nobel or other "major, international recognized award," then one needs to produce evidence of at least three types from the list of 10 in 8 C.F.R. 204.5(h)(3).[11] Let us review those criteria with particular attention to the types of documentation that might be available to businessmen and -women. Our experience and the examples we give are largely from the United Kingdom, but your client's home country may well have equivalent resources that you can mine for material.

1. Lesser prizes or awards for excellence in the field of endeavor.
Prizes may not be as typical for businesspeople as they are for athletes or artists, who routinely take part in competitions, but do not overlook this criterion. Groups such as trade associations and professional organizations often confer awards for excellence. Has the client been named "Man of the Year" by a chamber of commerce? Perhaps a manufacturers' association has distinguished your client for her innovation in its field? Here in the UK the Confederation of British Industry bestows annual "Growing Business Awards," which the Chancellor Gordon Brown has called "the business equivalent of the Oscars."[12]

2. Membership in associations in the field, which associations require outstanding achievements, as judged by recognized experts in the field.
Some business organizations may accept as members anyone with an interest and a check for the membership fee. Membership in such an organization is of no assistance in an EB-1-1 application. However, your client's participation in a roundtable of well-regarded businesspeople is worth documenting. A British example: The business organization "Institute of Directors" offers several levels of membership, depending on the applicant's qualifications and experience, and includes the level of "Fellow," which is available only upon invitation of the Institute's Board.[13] Qualify the Board members as "experts in the field," and selection of a client as a "Fellow" could fit this rubric.

3. Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field.
Our experience shows that many businesspeople maintain scrapbooks of articles (at least the favorable ones) that mention their activities and achievements. Those scrapbooks can be replaced, or supplemented, by your own Internet research and by clipping services that can retrieve materials not available on the Internet. Entries from Who's Who and other biographical dictionaries should be included. Do not overlook smaller, national biographical sources as well. One published in Great Britain has the helpful following criteria for inclusion: The subjects must be either British citizens, or foreign nationals working in Britain, "whose achievements have raised them to renown as leaders in their fields."

4. Evidence of the alien's original business-related contributions of major significance in the field
Was your client the first to offer pay-as-you-go wireless telephone service in his country? Perhaps he created the first company in his area to offer data processing to US companies seeking to outsource that work? Such pioneering endeavors can often be proved through articles in the press. In addition to trade publications do not overlook "home town" or weekly newspapers which are often particularly interested in trumpeting a new product or service made available by a local resident. Letters from colleagues or other persons knowledgeable in the field can be of assistance here in explaining the significance of the contribution.

5. Performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
This is a natural choice for anyone who has held an important position at a successful company. Establish the company's "distinguished reputation" and then show how important your client was to the company. For journalists, circulation figures for their periodicals should be obtained, and any distinguished history or reputation of the publication should be emphasized.

6. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.
Many professional and trade organizations perform periodic salary surveys that can be used as comparison for your client, particularly if the survey is accompanied by an explanation of the statistical fine-points of the methodology. Although O*NET and other easily-available surveys can be convenient starting points their lack of detail (no breakdown into percentiles, for example) mean they will be of little help in showing that your client is at the very top of the salary scheme.

7. Other evidence.
Do not overlook the regulations' invitation to "submit comparable evidence" if the regulations listed "do not readily apply to the beneficiary's occupation."[14] This can be one of the most fruitful areas for a lawyer with some creativity, for a prospective EB-1-1 in business will not have "evidence of commercial successes in the performing arts"[15] but may be able to show great commercial success for the business or portion of a business he led. His work will not have been displayed "at artistic exhibitions or showcases," but perhaps his business was used as a (favorable!) case study by a local business school. Ask your client such questions as: Was his company invited to take part in a display of the country's businesses organized by the trade authorities?

Conclusion

Although the United Nations has proclaimed 2005 to be "International Year of Physics"[16] , we practitioners of US immigration law should make it the year we prove to ourselves and our clients that it is not just rocket scientists, or Nobel Prize winners, who can qualify for the EB-1-1 and thereby obtain permanent residence in the United States.


1The three won their Nobels for the years 1921 (Einstein), 1938 (Fermi) and 1936 (Hess). All three were naturalized as US citizens after their receipt of the Nobel-the German-born Einstein in 1940, Italian native Fermi and Austrian Hess in 1944. http://nobelprize.org/physics/laureates/index.html
2The first preference also includes outstanding professors or researchers, and multinational executives or managers.
3US Citizenship and Immigration Services, 2003 Yearbook of Immigration Statistics, Table 5. Available at http://uscis.gov/graphics/shared/aboutus/statistics/IMM03yrbk/IMM2003list.htm .
4Immigration Act of 1990, Pub. L. No. 101-649, 121. It was effective October 1, 1991 (161), far too late for Einstein, Fermi and Hess.
5INA 203(b), 8 U.S.C. 1153(b).
6Section 302(b)(2) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232.
7The statute refers to aliens 'with' extraordinary ability, but the language of the body of the regulations (as opposed to the headings of same) speak of aliens 'of' extraordinary ability.
8INA 203(b)(1)(A)(i), 8 U.S.C. 1153(b)(1)(A)(i).
9INA 203(b)(1)(A)(ii) and (iii), 8 U.S.C. 1153(b)(1)(A)(ii) and (iii).
108 C.F.R. 204.5(h)(2).
11 Production of evidence of three of the 10 types however does not guarantee that the alien will be found eligible for the EB-1-1. See Notes of California Service Center/American Immigration Lawyers Association Liaison Meeting, May 2001, available on AILA InfoNet Doc. No. 01052403. Cf. Letter from Edward H. Skerrett to Nathan A. Waxman, June 15, 1995, posted on AILA InfoNet June 29, 1995 (EB-2 outstanding professor or researcher classification).
12 As quoted at www.growingbusinessawards.co.uk/main.htm .
13See http://www.iod.com.
148 C.F.R. 204.5(h)(4).
158 C.F.R. 204.5(h)(3)(x).
16 Proclaimed by the United Nations on June 10, 2004, commemorating the centenary of Albert Einstein's annus mirabilis in which he published landmark papers on special relativity, Brownian motion, and the photoelectric effect. http://www.un.org/News/Press/docs/2004/ga10243.doc.htm .


About The Author

Susan Willis McFadden is a partner in Gudeon & McFadden, a law firm in London, England practicing exclusively in the field of US immigration and citizenship law, with particular emphasis on immigrant and nonimmigrant visa applications at the US Embassy in London. She has extensive experience with both immigrant and nonimmigrant visas for aliens of extraordinary ability. Ms McFadden earned her BA magna cum laude, Phi Beta Kappa, from Pomona College in 1977 with honors in the fields of French and German, and her JD in 1980 from Stanford Law School. She moved to London in 1998 where she continues her representation of business- and family-based immigration clients, and finds that aliens of extraordinary ability provide some of her most interesting and challenging cases. Ms McFadden can be contacted at smcfadden@usvisalawyers.co.uk , or through the firm's website, at www.usvisalawyers.co.uk.


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