Saturday, November 20, 2010

EB-l Strategy Necessary for Chinese and Indian Extraordinary Ability Professionals Part 3

In Part 2 we saw that beginning in 2008, USCIS Service Centers started to pre-adjudicate cases and request visa numbers, requesting more employment-based visa numbers. This may be attributed to the fact that some registrants in the EB-2 and EB-3 categories were single when their petitions were filed, but they are now married and have children when their priority dates are becoming current. Moreover, the employers of EB-3 beneficiaries from India and China have been filing upgraded cases under the EB-2 category. This increases the demand for visa numbers allocated to the EB-2 category for Indian and Chinese nationals.

Charles Oppenheim is the Chief of the Immigrant Visa Control and Reporting Division at Department of State’s Visa Office. The Immigrant Control and Reporting Division's main responsibility is the administration of the Visa Bulletin which contains a monthly report as to the cutoff dates for the numerical limitations on immigrants, subdivided by preference category and country, which are set by the Immigration and Nationality Act. Every month the division determines the number of visas, to be allocated to each visa category, and to each country on a worldwide basis.

Mr. Oppenheim was a panelist at the American Immigration Lawyers Association’s California Conference in Monterey, California on November 12, 2010. Mr. Oppenheim told the attendees that it is unlikely that there will be any cut-off dates in the Employment First preference (currently open) during the coming months and that cut-off dates will continue to apply to the China and India Second preference categories due to heavy demand.

Mr. Oppenheim projected that based on current demand level the likely movement each month during the coming months are as follows (with the December 2010 priority date in parenthesis) : For China Employment Second (June 6, 2008): none to two weeks; For India Employment Second: no movement. Mr. Oppenheim projected that for Employment Third Worldwide the likely movement will three to six weeks; for China (December 8, 2003): one to three weeks; for India (January 22, 2002): none to two weeks; For the Philippines (February 22, 2005): three to six weeks. Based on these projections for Chinese and Indian Employment-based Second Preference, Employment-based First Preference’s immediate availability is important.

The first preference category comprises those foreign workers of extraordinary ability in their field of expertise, outstanding professors and researchers, and multinational executives and managers. Those qualifying for the employment-based one (EB-I) category can petition for the foreign worker without first obtaining labor certification from the U.S. Department of Labor, which requires an arduous recruitment process to
test the U.S. labor market.

Extraordinary Ability Aliens

The employment-based one (EB-1) category for extraordinary ability aliens is reserved for those individuals that have risen to the very top of their field of endeavor. These are the foreign workers that would be considered the "cream of the crop."In order to qualify for this category, the foreign worker must show sustained national or international acclaim and show his or her achievements have recognized in the science, arts, education, business, or athletics.

The regulations allow qualification for the EB-1 extraordinary ability category to be shown by providing evidence of a single internationally-recognized achievement. For example, major international awards such as the Nobel Prize, Pulitzer Prize, or an Olympic medal would be considered major international achievements, and would qualify an individual for the EB-1 extraordinary ability category. No other documentation of the individual's ability in their area of achievement is necessary.

If three lesser achievements can be demonstrated from a list of ten
specific achievement categories, one may still qualify in the extraordinary
ability category. The ten lesser achievements are as follows:

(1) Receipt of a lesser national or internationally recognized prize
or award for excellence in the field of endeavor.

(2) Membership in an association in the field of endeavor that
would require some outstanding achievement of its members,
who are recognized as experts in that field.

(3) Published material in professional or trade publications or
major media that relates to the work of the foreign worker in
the field of endeavor.

(4) Participation as a judge of the work of others in the same or
similar field of expertise. The foreign worker can be an
individual judge or one of a panel of judges.

(5) An original contribution shown of major significance in the
scientific, scholarly, artistic, athletic, or business-related

(6) Authorship of scholarly articles published in a major trade
publication or other major media.

(7) Display of work at artistic exhibitions or showcases.

(8) Performance in a leading or critical role for organizations or
establishments that have a distinguished reputation.

(9) Receipt of a high salary or other significant remuneration for
service in relation to others in the field.

(10) Demonstration of commercial success in the performing arts
as evidenced by box office receipts or records cassette,.
compact disk or video sales.

Those of extraordinary ability may self-petition for permanent resident status as long as the alien is coming to the United States to continue work in the area of expertise. The alien does not have to rely on an offer of employment to apply in the EB-1 category under the extraordinary ability subcategory. However, the alien must submit letters from prospective employers, contracts to perform work in the field of expertise, statements from the foreign worker, or other documentation showing a clear intent to pursue the work in the area for which classification is sought.