Extraordinary, outstanding, and exceptional are not quite synonyms in the immigration world, but what they do have in common is providing a route to permanent residence that bypasses the lengthy and burdensome labor certification process, and in some cases, a concrete offer of employment in the United States. There is also a nonimmigrant visa option for individuals of extraordinary ability, the O-1, which has a high standard for approval but provides a greater level of flexibility than other employment-based visa categories.
The immigration attorneys at Trow & Rahal work to develop cases for the EB-1 and EB-2 immigrant visa categories that showcase a foreign national’s significant professional accomplishments and contributions. Trow & Rahal has extensive experience navigating the subjective adjudication process at the USCIS and obtaining approved cases
The O-1 Nonimmigrant Visa for Individuals of Extraordinary Ability or Achievement
The O-1 visa can be a creative solution for employers seeking to hire recognized talent and avoid the H-1B lottery or meet the requirements of an L-1 intra-company transfer. It is also an option for foreign nationals who are not tied to a single U.S. employer as it does not require an employment relationship and can use an organization as an agent for filing the O-1 petition. Available for an initial three-year period, it can be extended indefinitely in one-year increments or three years if for a new event or new employer.
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A critical component of these cases is often expert testimonials that describe the foreign national’s achievements in detailed and easily understandable terms and explain the meaning and significance of the documentary evidence provided. Trow & Rahal will prepare the expert letters and present the supporting documentation to get the O-1 approved.
O visa can provide temporary work-authorized status for:
- O-1A. Applicants who have received sustained national or international acclaim and are recognized as one of a few at the top of their field in the sciences, education, business, or athletics.
- O-1B. Applicants with an extraordinary ability in the arts – defined as any creative endeavor – who have achieved distinction; or applicants in the motion picture or television industry who have achieved a degree of skill and recognition significantly above that ordinarily encountered.
- O-2. Applicants accompanying an O-1 artist or athlete to assist them in a specific event or performance.
- O-3. Spouses or children of O-1 and O-2 visa holders.
An O-1 petition may be filed by a U.S. employer or a U.S. “agent,” which can be a U.S. individual or organization authorized by the foreign national to act as the agent for immigration purposes. Such an arrangement is crucial for workers who are traditionally self-employed or who engage in short-term employment with numerous employers, such as artists. The O-1 is flexible, but the USCIS documentary requirements are quite rigid, calling for in-depth expertise and experience to get approval from the USCIS.
Extraordinary Ability (EB-1A)
The EB-1A, or the Employment-Based First Preference category, has essentially the same requirements as the O-1 but allows the applicant to become a permanent resident; for this reason, EB-1As are often subjected to a more stringent review process at the USCIS. Foreign nationals may qualify for a green card in the EB-1A category if they demonstrate extraordinary ability in the sciences, arts, education, business, or athletics. No specific job offer is required meaning that the applicant can self-petition if the applicant is entering the United States to continue to work in their field of expertise.
To be eligible for the O-1A or EB-1A classification, a foreign national must have won an internationally recognized award (such as the Nobel Prize). Most applicants don’t meet this standard but can satisfy the requirements by showing evidence that they at least three of the following criteria:
- Receipt of a highly regarded national or international award(s) for excellence.
- Membership in associations in the field that demand outstanding achievement from their members, as judged by recognized national or international experts.
- Published material about the foreign national in professional or major trade publications.
- Evidence that the applicant is a judge of the work of others in the field.
- Proof of the applicant’s original contributions of major significance to the field.
- Authorship of scholarly articles in the field, in professional or major trade publications or other major media.
- Display of the applicant’s work at artistic exhibitions or showcases.
- Evidence that the applicant has performed in a leading or critical role for organizations that have a distinguished reputation.
- Evidence that the applicant commands a high salary in relation to others in the field.
- Proof of commercial success in the performing arts.
When the application is reviewed, the USCIS first determines if they meet at least 3 of the criteria and then does a second, overarching review to determine if the person has sustained acclaim and is one of the few who has risen to the top of the field.
Outstanding Professors and Researchers (EB-1B)
When a U.S. employer seeks to retain a notable professor or researcher, they might consider the EB-1B category for outstanding researchers and professors. It has a slightly lower standard than the EB-1A – recognized as outstanding rather than as one of the few at the top – however, recognition must be international. Applicants in this category must:
- Be recognized internationally as outstanding in a specific academic discipline.
- Have at least three years of experience teaching or researching in their field.
- Be traveling to the United States to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher education.
- Be traveling to the United States to conduct research with a private employer that employs at least three persons full-time in research activities and has achieved documented accomplishments in the academic field.
In addition, applicants must meet at least two out of six criteria that mirror the scholarly EB-1A criteria.
The USCIS 2022 policy guidance provides special consideration for foreign nationals who are considered early career STEM graduates that helps make the O-1 and EB-1a more attainable for those who graduate with an advanced STEM degree, especially a Ph.D degree. STEM graduates can use awards, scholarships, and other recognition during their degree to qualify for the O-1A or the EB-1A.
Advanced Degree/Exceptional Ability Petitions With National Interest Waivers (EB-2 NIW)
Do you have an advanced degree in the arts, sciences or business? If so, you might be eligible for the Employment Second Preference (EB-2) category if you can show that your work is in the national interest of the United States. Second preference visa backlogs for foreign nationals born in India and China make the EB-2 less desirable for them, but it can still be a helpful step on their path to getting a green card. Like the EB-1A, a foreign national may self-petition under the EB-2 NIW category, and the USCIS has indicated specific ways that entrepreneurs can qualify, recognizing their important role in fueling ingenuity and economic growth in the United States.
EB-2 applicants must have either:
- An advanced degree beyond a baccalaureate degree, or a baccalaureate degree and at least five years of progressive experience in the profession, OR
- A demonstrated ability significantly above that ordinarily encountered in the sciences, arts, or business, as shown by proof of at least three of the following:
- An official academic record showing that the applicant has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.
- Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which they are being sought.
- A license to practice the profession or certification for a particular profession or occupation.
- Evidence that the applicant has commanded a salary, or other remuneration for services, which demonstrates exceptional ability.
- Evidence of membership in professional associations; or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
The national interest argument hinges on demonstrating that the foreign national’s proposed endeavor has both substantial merit and national importance; that the foreign national is the one who is well positioned to advance the proposed endeavor; and that – on balance - it would be beneficial to the United States to waive the requirements of a job offer/labor certification.
This is where our expertise in storytelling and creative strategizing really shine.
Are You or Your Business in Need of an Experienced Immigration Attorney?
If you or your business is trying to navigate the difficult task of obtaining a lawyer to help with immigration roadblocks, you should speak with an experienced immigration attorney as soon as possible. We have been helping employers with the immigration process related to their employees since 1993 and always work towards exceeding expectations. Please contact us online or call our office directly at 202.537.4830 to discuss your specific business immigration legal needs. We service clients throughout the United States from our Bethesda, Maryland office and look forward to working with you.