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Article | Aug 19, 2010

Bring us Your Outstanding, Your Artistic, Your Productive Foreign Nationals: Immigration Options in the National Interest

The Immigration and Nationality Act – the body of federal laws that controls the United States immigration system – contains a number of provisions for foreign nationals to obtain temporary and permanent immigration status in the U.S. based on employment and/or activities from which the U.S. believes its citizens and residents stand to benefit. The law provides immigration avenues across a broad range of pursuits, from science, technology and national security to rural healthcare and medicine, from culturally unique artistry to acclaimed entertainment and athletics. The economic contributions and competitive advantages that foreign workers have brought to the U.S. are well documented, as are the unfortunate and restrictive aspects of U.S. immigration policy which prevent the U.S. from further harnessing the availability of gifted, productive individuals seeking access to the U.S. and its markets. To the extent that the law already awards exceptionally talented, productive, and visionary foreign nationals with pathways to status in the U.S., we need to expand rather than restrict these provisions, which are critically important to the U.S. economy and to the country’s position within the global marketplace of business, science, technology, and industry.

IMMIGRANT STATUS
In addition to family-based options for permanent residence in the U.S. (green card status), and options based on market-tested offers of employment (the Permanent Labor Certification Process), a number of paths exist for permanent residence based on special activities and employment, including the following:

1. Employment-based First Preference Category (EB-1)
This category does not require that the foreign national obtain a certification from the Secretary of the Department of Labor (DOL) that the work in which he or she will engage will not displace U.S. workers—also known as a “labor certification.” The category represents a policy determination that the work of some foreign nationals is so extraordinary or outstanding that it warrants a fast-track to permanent residence. There are several sub-categories.
A. Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Here, foreign nationals can petition with or without a prospective employer, and are required to demonstrate sustained national or international acclaim. They must be entering to continue to work in their chosen field, and they must “substantially benefit prospectively the U.S.” Evidence of an individual’s sustained national or international acclaim may include one-time achievement of a major international award, or, alternatively, an applicant must meet three of ten criteria, including lesser awards; achievement-based memberships in organizations; published material about or by the foreign national in major professional publications; participation in judging the work of others in the field; evidence of original scientific, scholastic, artistic, athletic, or business-related contributions to the field; high salary; and commercial success in the performing arts.

B. Outstanding professors and researchers. Here a beneficiary must have a minimum of three years experience in teaching or research, and establish international recognition in an academic discipline, according to criteria similar to that required to establish “extraordinary ability.” These individuals must be coming for a tenure or tenure-track position, or for a comparable position at a university, institute, or with a private employer to conduct research. While no labor certification is required, there must be an offer of ongoing employment from the sponsoring employer.

C. Multinational executives or managers. This category is for foreign nationals who have been employed abroad in an executive or management capacity (for one year in the last three years prior to entry) with a firm, corporation or legal entity, affiliate, or subsidiary with U.S. and foreign operations and are serving or coming to serve in an executive or managerial capacity for the related U.S. entity.

2. Employment-based Second Preference Category (EB-2)
This category is for members of the professions holding advanced degrees, or for persons with exceptional ability in the arts, sciences, or business who will substantially benefit the national economy or culture who are “sought by an employer in the United States.” Based on “exceptional ability” and work in the “national interest,” applicants may obtain a “national interest” waiver of the labor certification requirement that otherwise is required for the EB-2 category.
A. “Exceptional Ability” is defined as an expertise beyond that which is normally found in the profession. Proving “exceptional ability” can be accomplished by demonstrating three of six criteria surrounding education, experience, and achievement.

B. “National Interest” requires a showing that the foreign national seeks employment in an area of substantial intrinsic merit, that the proposed benefit will be national in scope, and that the foreign national’s achievements and skills warrant a waiver of normal labor certification requirement.

C. Physicians in the “National Interest.” Physicians can also avoid the labor certification requirement if they agree to work full-time in a clinical practice for a total of five nearly continuous years within a geographic location and a practice specialty area that is designated as medically underserved, as having a shortage of health professionals, or meeting related criteria.

3. Employment-based Fifth Preference Category (EB-5)
This category is for employment-creation and is sometimes called the “investor visa.” It provides conditional residency—and ultimately, permanent residency—for those who invest $1 million in a new commercial enterprise that employs at least 10 full-time U.S. workers. A lesser investment of $500,000 may qualify the investor if the investment is in one of the targeted employment areas, including rural, low-population areas or locations that have experienced unemployment at 150 percent of the national average. Pilot programs have been available at times, with relaxed eligibility standards.

NONIMMIGRANT STATUS
Aside from the traditional options of H-1B professionals, H-2B temporary workers, and L-1 intracompany transferees, there are several temporary statuses specifically oriented toward outstanding and unique individuals, from investors and scientists to artists and entertainers.
O-1 Classification – Extraordinary Ability
• The O-1A classification is foreign nationals who have demonstrated extraordinary abilities in the sciences, arts, education, business, or athletics – through sustained national or international acclaim.
• The O-1B classification rewards extraordinary achievement in the motion picture or TV production industries.

P Classification – Athletes and Entertainers
• The P-1A classification is for athletes who are internationally recognized, either themselves or as part of a group.
• The P-1B classification is for foreign nationals who perform with, or as an integral part of, an entertainment group that has been internationally recognized as outstanding for a sustained period.
• The P-2 visa classification is for a foreign national who will be entering the U.S. to perform as part of a group, individually (or otherwise integrally) under a reciprocal exchange program.
• The P-3 classification applies to artists and others entering as part of a “culturally unique program” (including coaching); the program may be commercial or noncommercial and need not be sponsored by an educational, cultural, or government agency.

Q Classification – International Cultural Exchange
The Q classification applies to foreign nationals participating in an international cultural exchange program approved in order to provide employment, practical training, and the sharing of history, culture, and traditions of the individual’s country of nationality. The employment must occur in a school, museum, business, or other similar entity and must be designed to exhibit or explain the attitude, customs, history, heritage, philosophy, or traditions of the person’s country.

E Classification – Treaty Investors & Treaty Traders
Treaty traders (E-1) and treaty investors (E-2) are in a special category to which some of the traditional nonimmigrant visa rules do not applyE visas allow a foreign national to remain in the U.S. for an indefinite period under a reciprocal treaty of commerce and navigation between the United States and the country of nationality. The treaty trader (E-1) must be engaged in “substantial trade” between the United States and his or her home country. The treaty investor (E-2) must be developing or directing an enterprise in which he or she has invested a substantial amount of capital.

This article is meant to highlight unique avenues for immigration status in the U.S. To discuss any of these options, or more traditional immigration paths, please contact Landis Arn & Jaynes with your questions, or to arrange a consultation.