If you are in the top of your field — whether it be science, medicine, business, academia, art, or athletics — you may be eligible to apply for a green card even without receiving a job offer from an American employer. The benefits of obtaining a green card in the United States are numerous. A green card is a path to citizenship and it allows you to work, travel in and out of the United States, and bring other family members into the United States beyond your immediate family. Your spouse and children may be included in the initial green card application, and not only will they be able to obtain employment authorization in their own right, but the green card will allow your children to receive financial aid for college, among other benefits.
There are two types of employment-based immigrant visas that do not require a job offer or labor certification: the extraordinary ability visa (EB-1A), and the national interest waiver (NIW). These may be a good option for you if your work is temporary in nature (e.g., postdocs, PhDs serving as visiting university faculty, or medical residents and fellows), you are unable to obtain a permanent job offer in the United States, or if you are not pleased with the offers you have received.
How to show extraordinary ability
The U.S. government is selective in granting the extraordinary ability immigrant visa. It is the highest preference immigration category and reserved for those who are among the top few percent of experts in their field, either in their home country or around the world. All petitions should be supported by letters of reference from people in your field, including those with whom you have not yet worked. The independent references are necessary to show that your work is known outside your immediate circle of peers. Ultimately, the goal is to show that you have achieved sustained national or international acclaim.
If you have received a Nobel Prize or similarly prestigious award, no further evidence is needed, and you will qualify for the extraordinary ability immigrant visa. But even if you have not achieved that level of notoriety, you may still qualify if you can satisfy 3 out of the 10 of criteria below:
- You have received lesser nationally or internationally recognized prizes or awards for excellence;
- You are a member of associations in your field which demand outstanding achievement of their members;
- There is published material about you in professional or major trade publications or other major media;
- You have been asked to judge the work of others, either individually or on a panel;
- The contributions you have made to your field are of major significance;
- You have authored scholarly articles in professional or major trade publications or other major media;
- Your work has been displayed at artistic exhibitions or showcases;
- You have played a leading or critical role in distinguished organizations;
- You command a high salary or other significantly high remuneration in relation to others in the field; or
- You have achieved commercial success in the performing arts.
Immigration authorities will also consider other types of evidence if the above criteria do not fit your situation. Additionally, although the extraordinary ability category on its face applies only to certain fields — e.g. arts, science, medicine, etc. — those fields are often broadly interpreted, meaning that an animal trainer, for example, may be considered to be in “the arts.”
The petition process for extraordinary ability visas
Although you do not need to wait for an employer to file an immigrant visa petition on your behalf, you still must file an immigrant visa petition on your own behalf with USCIS using Form I-140. The processing times vary and premium processing is available for an additional fee, which will reduce the wait time significantly.
Should the petition be granted, you should begin consulting the U.S. Department of State Visa Bulletin routinely to determine when your immigrant visa will become available. You will be considered a priority worker (employment-based immigrant visa, first preference, or EB-1), so you should theoretically have the shortest wait time.
How to qualify for the national interest waiver
The NIW category is very similar to the extraordinary ability category, in the sense that it is only available to those in the top of their field. Indeed, many of the same letters and evidence described above should be used to demonstrate your eligibility for the NIW visa category. But the focus is different. As noted, to qualify for the extraordinary ability category, you must show that you have achieved sustained acclaim in your home country or internationally. (If you come from a small country, that may be an easier standard for you to meet). For the national interest waiver, on the other hand, the focus is not on how you are perceived in other countries, but rather, how your work impacts the national interest of the United States. In sum, you must show that:
- (1) Your work is of substantial intrinsic merit, meaning that your work helps improve some aspect of life in the U.S., in areas such as medicine, national security, energy, education, or culture;
- (2) The benefit of your work is national in scope; and
- (3) Your work has had a demonstrable impact on your field, such that waiving the labor certification is in the national interest.
The third requirement is the hardest to satisfy. Labor certifications are designed to ensure that hiring foreign workers will not deprive U.S. workers of job opportunities. So, if you are going to demonstrate that the labor certification requirement should not apply, you must show that your work is so valuable that it makes little sense to compare you to other U.S. workers.
The petition process for the national interest waiver
As with the EB-1A extraordinary ability visa, you must file an I-140 petition on your own behalf to qualify for the national interest waiver. There is no premium processing option for a visa petition filed under the NIW category, so normal wait times apply. Once the petition is granted, you must begin consulting the U.S. Department of State Visa Bulletin to determine when your immigrant visa will become available. You will fall within the second preference employment-based visa category (EB-2), so your wait time could be longer than the extraordinary ability category, which falls under the first preference employment-based visa category (EB-1).
The green card application process
Once you have an approved I-140 immigrant visa petition, you may now file your green card application. As an added benefit, if you have a pending green card application, you may request a temporary work permit. If you wish to obtain temporary work authorization sooner, you may file your green card application (Form I-485) at the same time you file your I-140 petition. But some prefer to wait until the I-140 petition is granted, because, if your I-140 petition is denied, your temporary work authorization will be revoked, which could complicate any plans you may have made in the interim. In any event, regardless of when you submit your green card application, it will not be adjudicated until the I-140 petition is approved.
If you are living in the United States, you must apply for your green card by filing Form I-485 with USCIS. If you are living abroad, you must seek an immigrant visa through consular processing. In either case, you must show that you qualify for the visa in question and that you are admissible to the United States.
Which category should you choose?
The requirements for the extraordinary ability visa and the national interest waiver overlap in many ways, and some people may wish to apply for both. But they do require separate applications, each with a filing fee of $580, so it is always a good idea to speak with a qualified attorney to determine which category best fits your situation. Even then, your attorney may not know which category is most appropriate until he or she has had an opportunity to review all of your documentation. Otherwise, as noted above, the waiting time for an extraordinary ability visa may be less than the national interest waiver, because the former falls under the first preference employment-based visa category (EB-1), while the latter falls under the second preference, employment-based visa category (EB-2).
If you are not sure you qualify for either the extraordinary ability visa or the national interest waiver, you may have other options. For example, if you have family members living in the United States who are either citizens or green-card holders, you may qualify for a green card through these individuals.
Alternatively, if you manage to obtain a job offer in the United States, you may apply for a temporary work visa or immigrant visa through your employer, but it will likely require your employer to apply for a labor certification and file a visa petition on your behalf.
Even if you still wish to work in the United States without first obtaining a job offer, you may consider obtaining a temporary work visa for people of outstanding ability (O-1 Visa).
Lastly, if you are afraid of persecution in your home country, you may apply for asylum or refugee status. If you are granted asylee or refugee status, you may qualify for a green card after one year.
If you are in the top of your field and are interested in pursuing a green card through a self-petiton, contact me today.
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