Our client Lei, a chemical engineer with a Ph.D. from China, came in for a consultation. Lei is in the United States as a temporary worker with H-1B status and is employed by a large biopharmaceutical company well known for its many research and development accomplishments. Lei had decided to remain in the U.S. and wanted to know how he could obtain lawful permanent residence (i.e., his "green card"). His employer had agreed to sponsor him for lawful permanent residence by filing an application for "labor certification." This is the route that most foreign scientists follow in order to obtain a green card. Lei explained that his employer was confident it could meet the criteria for labor certification: proving through recruitment efforts that there are no U.S. workers able and available to fill Lei's job.
Lei, however, had reservations. First, Lei did not intend to stay with the employer for more than another year; he had heard that he would need to remain with the sponsoring company for as many as 3 or 4 years if he got his green card via the labor-certification process. Second, he wanted a green card as fast as possible because his oldest daughter would soon turn 21, and Lei knew the only way to ensure that she would get her green card was if his was granted before she turned 21.
Lei came to us seeking advice: Should he accept his employer's offer to start the labor certification process, or was there a faster, better way for him to obtain a green card?
The immigration process is fraught with confusion and uncertainty, and many foreign-national scientists employed in the U.S. on nonimmigrant visas experience Lei's dilemma. The first in a three-part series exploring alternatives to a lengthy and cumbersome labor certification, this article addresses one highly specialized immigrant visa category--the "Alien With Extraordinary Ability."
Lawful permanent residence in the United States is usually gained via one of two methods: family sponsorship or employer sponsorship. The Alien With Extraordinary Ability classification falls within the highest-preference employment-based category, often referred to as "EB-1." This is the highest-preference category because it is reserved for foreign nationals with the most potential to make a positive impact on American society--extraordinary scientists, artists, and businesspeople; outstanding scientific researchers; and multinational executives and managers. The second preference is for aliens who either are exceptional in their fields or have advanced degrees; and the third preference is for skilled workers. The number of foreign nationals who are allowed to become lawful permanent residents each year through employment-based petitions is restricted to 140,000, and no country can exceed 9800 of this total amount. This often causes long waiting lists for second- and third-preference natives of China and India, two countries that regularly exceed their share of green cards each year. Immigrant visas have always been available under the first preference with no waiting list.
Ten Criteria for Extraordinary Ability Status
Having determined that Lei had no immediate family members who were U.S. citizens or lawful permanent residents, we discussed the employment-based immigrant visa categories. The Alien With Extraordinary Ability category is one of only a few categories exempt from the employer-sponsorship requirement (another, the "National Interest Waiver," will be the subject of the next article in this series.) The Extraordinary Ability category intrigued Lei because he could qualify for a green card on the strength of his own accomplishments, without the uncertainty of continued employment. Lei merely needed to show that he intended to continue to work in the United States in the area in which he had been recognized as possessing "extraordinary ability."
The regulations followed by the INS define "extraordinary ability" as a level of expertise marking one as "one of that small percentage who have risen to the very top of the field of endeavor." The foreign national must prove "sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." One can qualify based upon a "one-time achievement" such as by having won the Nobel Prize, or by meeting at least three of 10 criteria.
After confirming that Lei had not recently won the Nobel Prize, we reviewed the remaining criteria. If Lei could demonstrate that he met at least three of the 10 criteria (see sidebar), we could petition for qualification as an "alien with extraordinary ability." Winning approval under this classification is not formulaic; it requires compelling evidence establishing that the individual is one among the small percentage who have risen to the top.
Merely meeting three of the 10 criteria does not automatically lead to approval: The INS has stated on numerous occasions that merely submitting evidence that three of the 10 criteria are met does not necessarily prove "extraordinary ability." It is unwise to pursue this immigrant visa category unless one is reasonably certain that strong evidence in support of the petition can be produced.
A well-prepared petition should include the following:
The first step to show that one is among that "small percentage who have risen to the very top" is to narrow the field. Lei's field of endeavor is chemical engineering--a broad field with numerous subspecialties. Lei's expertise and renown, however, was gained in the specific field of fatty-acid transport and lipid metabolism. We focused on this subspecialty and prepared a brief discussion of the field in layman's terms, highlighting the importance of the specialty field and how it affects everyday life.
The most essential documentation for proving extraordinary ability is supporting letters from experts with a connection to the foreign national's field of endeavor. Letters from experts, accompanied by the author's curriculum vitae or other biographical information highlighting his or her distinction or prominence, are a critical component of the Extraordinary Ability petition. Letters can carry great weight, often tipping the scales in questionable cases.
It is very important that these letters of recommendation be carefully drafted. An expert who writes a letter of support stating that the applicant is "a rising star in the field" can do more harm than good, because the requirement is that the foreign national already be "one of that small percentage who have risen to the top." Conversely, a letter from the chief of the NIH stating that the applicant's research discovery "has provided critical insight into the suppression of metastasis in cancer patients and reoriented the way we administer therapies" will undoubtedly tilt the scale favorably towards the petition's approval. Yet no letter, standing alone, can single-handedly win approval. Each must complement the other and underscore the same proposition: that the applicant is an individual of extraordinary ability in his or her field of endeavor.
A well-written letter of recommendation will spoonfeed the INS examiner, establishing the letter writer's ability to comment on the foreign national's work. This is also a key opportunity to explain to the INS the relevance of the scientific field and to applaud the accomplishments that have led to the petitioner's "sustained national or international acclaim." The best letters of recommendation do more than just repeat the foreign national's resume; they offer clear opinions about the prominence of certain awards that the foreign national has won, the wide acclaim of the journals that have published the foreign national's work, or the distinct prestige bestowed upon the petitioner as a result of being mentioned in an article in a leading publication. If the foreign national has received a nomination and election to any prominent societies or academies, letters of recommendation can teach the INS about the importance of such an event.
Any claim that one of the 10 criteria has been met should be backed up by concrete evidence in the form of originals or photocopies--of awards, journal articles, books or book chapters, citations to published work or articles that discuss the foreign national's work, letters requesting service as a judge or peer reviewer, or membership in prominent societies, associations, or academies.
We provided Lei model letters of recommendation and a checklist to follow. Three weeks later, after much document gathering and contacting of colleagues and mentors, he e-mailed us eight draft letters of recommendation from experts within the U.S. and around the world. We reviewed the drafts and asked for the authors to submit revised letters.
Soon after submission of Lei's Extraordinary Alien petition, the INS Regional Service Center approved the case. Lei and his family were now ready to apply for the final step in the green card process--the application to adjust status to lawful permanent residence--and just 7 months had passed since the initial consultation.
Jeffrey W. Goldman and John J. Gallini are counsel at Testa, Hurwitz & Thibeault, LLP in Boston, Massachusetts, concentrating in business immigration law. They can be reached at Goldman@tht.com  or Gallini@tht.com .