This is the third article in a series on obtaining a green card without labor certification.
When we analyze a client?s chances to qualify for a green card, we first try the Alien of Extraordinary Ability and the National Interest Waiver categories, because these two categories permit the scientist to petition the U.S. Immigration and Naturalization Service (INS) while avoiding both employer sponsorship and the cumbersome labor-certification process.
The advantages of self-petitioning are immense for those who qualify, especially in a down economy where continued employment with a particular employer is not guaranteed. Foreign scientists sponsored by a particular employer, after all, may lose their nonimmigrant status and the viability of their green card applications when their employment ends.
We see many clients, however, whose credentials are inadequate for a successful petition under these two self-petitioning categories. The best alternative in many such cases is the Outstanding Professor and Researcher (OPR) category. OPR requires employer sponsorship, but it does allow the scientist to qualify for a green card without obtaining a Labor Certification from the U.S. Department of Labor. And even though employer sponsorship is required, OPR can cut the time required to obtain a green card in half by avoiding the Labor Certification process. Moreover, unlike the National Interest Waiver category, which has a large subjective component, qualifying as an OPR is far more formulaic: If you can prove that you meet the requirements and have well-drafted letters of recommendation from recognized experts stating that you are outstanding in your field, your application will most likely be approved.
INS considers Outstanding Professors and Researchers to be those who are internationally recognized as outstanding within a particular academic field. "Academic field" is defined by INS as "a body of specialized knowledge offered for study at an accredited United States university or institution of higher education." In order to prove that one is internationally recognized as "outstanding," the petition to INS must include at least two of the following:
Documentation of receipt of major prizes or awards for outstanding achievement in the academic field;
Documentation of membership in associations in the academic field which require outstanding achievements of their members;
Published material in professional publications, written by others about the foreign scientist?s work in his/her academic field;
Evidence of the foreign scientist?s participation, either individually or as part of a panel, as the judge of the work of others in the same or an allied academic field;
Evidence of the foreign scientist?s original scientific or scholarly research contributions to the academic field; and
Evidence of the foreign scientist?s authorship of scholarly books or articles published by scholarly journals with an international circulation in the academic field.
INS takes the position that proving "two out the six" criteria does not guarantee approval. This is, rather, only a guideline for the INS officer who is making a decision. Hence it is important to include any evidence--not limited to the six items listed above--that may prove that the foreign scientist is outstanding, such as invitations to speak at academic symposia, invitations to attend prestigious conferences, and evidence from a citation index indicating that the scientist?s work has been cited as authoritative.
OPR petitions must also document that the scientist has at least 3 years of experience in teaching and/or researching in his or her academic field. This evidence must take the form of a letter from a current or former employer. Experience gained while obtaining an advanced degree will count toward the 3-year requirement only if the scientist completed the degree, and only if the scientist had full responsibility for the class taught, or if the research has been recognized within the field as outstanding.
Finally, OPR petitions must be accompanied by an offer of future U.S. employment. If the sponsor is a university or institution of higher education, then the employer?s letter must confirm that the scientist is being offered a tenured or tenure-track teaching position, or a research position in his or her field. If the sponsor is a private (i.e., nonuniversity) employer, the letter must confirm an offer of a research position in which the parties expect continuous, indefinite employment, that the employer employs at least three people full-time in similar research positions, and that the employer has achieved documented accomplishments in an academic field. The last requirement prevents start-up entities from petitioning INS on behalf of outstanding researchers.
INS expects that any alien who is "outstanding" will be able to provide several letters of recommendation from internationally or nationally recognized scientists confirming the quality and significance of the candidate's work. Letters from such experts should be accompanied by the expert?s curriculum vitae and should address the nature of the relationship between the expert and the foreign scientist. The best author for a letter of recommendation is one who can demonstrate objectivity; he or she should demonstrate "independence from the foreign scientist, i.e., that he or she has no personal stake in INS?s decision and that the letter arises from professional and not personal considerations. If the expert's letter cannot state clearly that the foreign scientist is at a minimum "outstanding," then it should not be submitted to INS at all as it will only serve to dilute the INS officer?s level of esteem for the foreign scientist.
One of the more difficult parts of drafting such letters of recommendation is explaining in layman?s terms exactly what the scientist's research is about, and what relevance it has to an average person?s life. INS adjudicators are not scientists--they are average people, some with advanced degrees, some with a college education, and some with only a high school diploma. When we review and edit letters of recommendation, our goal is for each letter to "spoon-feed" the most interesting information about the research to INS; to explain the relevance of the research so that the adjudicator understands that he or she will personally benefit from this research; and to leave the adjudicator with a feeling of excitement that he or she is aiding science by bringing an excellent scientist permanently to the United States.
The regulations for the OPR category sound similar to those for the Extraordinary Alien category, but subtle differences can make or break a case. Awards and prizes must be for "excellence" in Extraordinary Ability petitions, but only need to show "outstanding achievement" for an OPR petition. Likewise, contributions to the academic field must be "original" and "of major significance" for Extraordinary Ability cases, but need only be "original" to count toward OPR petitions.
Many OPR petitioners receive requests from INS to submit additional evidence. INS has been known to ask for evidence which exceeds the regulatory requirements, and petitioners should take care to scrutinize such requests for demands that exceed INS authority.
What Has Changed Since 11 September?
The OPR category remains a dependable way to get a green card without Labor Certification, even in the wake of the events of 11 September. Scientists from countries such as Pakistan, India, or Saudi Arabia who are qualified for green cards are not encountering extraordinary problems. Unless you're a native of a country on the U.S. government's list of terrorist states, you may even find the process a bit more user-friendly than it was before the attacks, because, as part of the government's effort to prove that the terrorists failed to shut down the U.S. economy, INS remains open for business, adjudicating the vast majority of immigration visas as fast, if not faster, than before 11 September.
John J. Gallini and Jeffrey W. Goldman are counsel at Testa, Hurwitz & Thibeault, LLP in Boston, Massachusetts, concentrating in business immigration law. They can be reached at Gallini@tht.com or Goldman@tht.com.